dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: 
IN RE: 
JAN 1 6 2015 
Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
�����:;�trative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification under section 203(b )(2) of the hnmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an elementary special education teacher for 
in Maryland. The petitioner has taught at the 
r � 
,I since December 2007. The petitioner asserts that an exemption from the requirement 
of a job offer, and thus of a labor certification, is in the national interest of the United States. The 
director found that the petitioner qualifies for classification as a member of the professions holding an 
advanced degree, but that the petitioner has not established that an exemption from the requirement of a 
job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a legal brief. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available .. . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest. " Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .. .. " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCI S)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptio nal."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial int,rinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U. S. worker having the 
same minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections offuture benefit to the national interest. /d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
I. Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 22, 2013. An 
accompanying statement indicated that the petitioner's "petition for waiver of the labor certification 
is premised on her equivalent Master's degree and [her] over twenty (20) years of professional and 
progressive teaching experience" (emphasis in original). Academic degrees and experience can 
contribute toward a finding of exceptional ability under 8 C.P.R. § 204.5(k)(3)(ii)(A) and (B), 
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respectively, but exceptional ability is not grounds for the waiver. See section 203(b)(2)(A) of the 
Act. 
The introductory statement indicated that the submitted evidence shows that the petitioner "plays a 
crucial role in the future of the improvement of United States education and the attainment of our 
nation's goals." Many of the submitted exhibits are letters from administrators and teachers, 
as well as the parents of students. These individuals described the petitioner's contributions to the 
school where she teaches, but these contributions are inherently local. 
Dr. principal of , stated: 
[The petitioner] has demonstrated outstanding practices in collecting and utilizing 
data for program accountability and designing successful differentiation for students. 
Often' her data system models are utilized for professional development among 
colleagues. These data models serve as school-wide data collection models for the 
purpose of monitoring the student and school performance. This collection of data is 
also required for accountability by the Special Education Department for Compliance 
and regular student report cards. 
Participation in required activities, such as data collection, is a fundamental job duty rather than a 
special contribution. Regarding the claim that the petitioner's "data system models are utilized for 
professional development among colleagues," the record does not show the extent of this use. 
Without evidence to that effect, the petitioner has not shown that the impact of her work extends 
beyond or even beyond the faculty of 
The petitioner's remaining initial evidence consisted of certificates, evaluations, and other materials 
confirming that the petitioner is an experienced and qualified school teacher who taught in the 
Philippines prior to arriving at in 2007. These materials establish that the petitioner holds 
firm credentials as a special education teacher, but they do not show that the benefit from her 
employment will be national in scope or that her work has influenced the field. 
The director issued a request for evidence (RFE) on November 26, 2013, stating that the petitioner's 
initial evidence does not "establish that the petitioner's work as an elementary special education 
teacher has had an impact on the field as a whole and that her teaching techniques [have] been used 
by other schools [beyond] her employer's organization. " 
In response, the petitioner submitted a statement indicating she meets the definition of a "highly 
qualified teacher" in the No Child Left Behind Act of 2001 (NCLBA), Pub. L. 107-110, 115 Stat. 1425 
(Jan. 8, 2002). As "[ e ]vidence that the employment of a 'Highly Qualified Special Education Teacher' 
would benefit not only the improvement of education in the United States of America but also the 
nation's economy," the response statement cited a number of articles and opinion columns regarding the 
importance not of special education, but of science, technology, engineering and mathematics (STEM) 
education. The relevance of these materials is not readily evident, as the petitioner is not a specialized 
STEM teacher. 
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The response statement includes the following passage: 
The reasonable standard in determining whether the proposed employment is national 
in scope must not purely be geographical in nature but intellectual consideration as 
well such as directed to recapture the nation's economic dominance by future 
American populace ... . 
Syllogistically, hiring 'Highly Qualified Teachers' would produce more graduates 
than dropouts. By producing graduates and eliminating dropouts, State and Federal 
Governments would be empowered by mature, intelligent and responsible citizenry. 
The petitioner's RFE response statement detailed federal education initiatives and Maryland's 
statewide efforts to meet federal benchmarks, and indicated that the petitioner "plays a primary role 
in accomplis�ing the law's goal of closing the achievement gap" and "is an effective teacher in 
raising �tudent achievement in STEM." The petitioner did not submit evidence to establish her role 
in "closing the achievement gap" or "raising student achievement in STEM," or to show that the 
hiring of one "Highly Qualified Teacher" increases graduation rates. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The RFE response statement offered generalized arguments regarding the importance of training 
workers in STEM fields and closing the "achievement gap" that exists along certain ethnic and 
economic lines. The evidence specific to the petitioner, however, did not indicate that her work has 
addressed or will address these issues. Letters from the petitioner's colleagues and the parents of her 
students focused, instead, on her effectiveness at teaching students, several of whom were described 
as having severe cognitive deficits. 
The petitioner's RFE response statement discussed the NCLBA and various other federal education 
statutes and initiatives. These materials address the intrinsic merit of education, which the director had 
not disputed, and they describe national goals, but they do not state or imply that the work of one 
teacher significantly contributes to those goals. The importance of teachers is collective rather than 
individual. This conclusion is consistent with NYSDOT, which cited elementary school teachers as 
examples of an occupation with intrinsic merit but which lacked national scope. /d. at 217 n.3. 
The RFE response statement claimed that "the No Child Left Behind Act of 2001 trumps the Labor 
Certificat[ion] since job opportunities for U.S. workers are guaranteed once No Child Left Behind Act 
of 2001 is faithfully executed. " The petitioner did not identify any passage of the NCLBA that 
addresses immigration or could be interpreted to guarantee "job opportunities for U.S. workers." These 
unsupported assertions have no weight as evidence and do not meet the petitioner's burden of proof. 
See Matter of Soffici, 22 I&N Dec. at 165 
The RFE response statement also claimed that the labor certification process would pose a "dilemma" 
because the petitioner's qualifications exceed the minimum requirements for the position, and "the 
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employer is required by No Child Left Behind (NCLB) Law ... to employ highly qualified teachers." 
The petitioner did not show that these two considerations are incompatible. Section 9101(23) of the 
NCLBA defines the term "highly qualified teacher" as one who : 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• demonstrates competence in the academic subjects he or she teaches. 
Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if he 
or she has "had certification or licensure requirements waived on an emergency, temporary, or 
provisional basis." The petitioner did not explain how the above requirements are incompatible with 
the existing labor certification process, and she submitted no evidence that the statutory job offer 
requirement ,has resulted in the widespread employment of teachers who are less than "highly 
qualified," or has impeded the employment of highly qualified teachers from abroad. The minimum 
degree requirement (i.e., a bachelor's degree) is the same for labor certification as it is for a highly 
qualified teacper, and the petitioner did not show that the NCLBA distinguishes between teachers with 
bachelot's de¥rees and teachers with master's degrees. 
In a personal statement, the petitioner acknowledged that sought foreign teachers because 
"they could not find U.S. workers," which appears to be the situation for which labor certification 
exists. 
Dr. in a new letter, stated: 
[The petitioner] has demonstrated excellent leadership and expertise that contributed to 
the school's remarkable increase in proficiency as shown in Alt-MSA [Maryland 
School Assessment] testing results. achieved 90% advanced/proficient 
levels in all the subject areas tested, which included science, reading and math. 
The record does not contain evidence to show that the petitioner, individually, played a significant role 
in the school-wide MSA scores. The petitioner submitted a copy of "Data From Progress Reports 
March 31, 2011 ," ranking her class's progress toward goals such as "Reading Goals" and 
"Independent Living. " For each goal, there were three possible results: "Achieved," "Making 
Progress" and "Not Making Progress. " The 2011 report shows every result scored under "Making 
Progress"; every number in the "Achieved" column is "0." 
Dr. Cutright discussed other elements of the petitioner's work at 
As an Alt-MSA test administrator, [the petitioner] developed and implemented grade 
level testing artifacts aligned with the Maryland State Curriculum and Federal 
Regulations .... 
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[The petitioner] will continue to work as a representative to 
for alternative assessments for our county .... 
Additionally, [the petitioner] has completed several successful teaching years as a 
special educator at our school. She has demonstrated outstanding practices in 
collecting and utilizing data for program accountability. Often her data system models 
are utilized for professional development among colleagues. These data models serve 
as school-wide data collection models for the purpose of monitoring the school's 
performance and student achievement. ... 
[The petitioner's] accomplishments in 
_ 
implications in the field of special education. Firstly 
systems are being sought. ... 
. have global 
reliable data collection 
In 
_ 
. [the petitioner] participates in a county initiative charged 
with the task of developing a data collection system for students with disabilities .. . . 
As the data system is developed by this committee, it will serve students in 
and become a model for other systems, state wide and potentially 
nation wide as well. 
The petitioner submits no evidence that, in the past, she has developed models that other school 
systems have put into use. Therefore, the assertion that a data collection system that is still under 
development could "potentially" "have global implications ... [as] a model for other [school] 
systems" is unsupported speculation, which has no weight as evidence. See Matter of Soffici, 22 
I&N Dec. at 165. 
The director denied the petition on July 7, 2014. The director listed the evidence the petitioner 
submitted, quoted a selection of letters, and cited NYSDOT with respect to the local scope of 
classroom education. The director stated: "The issue is not the cumulative impact of thousands of 
teachers nationwide, but the impact of the [petitioner's] own activities." 
On appeal, the petitioner submits a legal brief containing the assertion that USCI S has acknowledged 
"the absence of [a] clear-cut Congressional standard in understanding the concept of 'in the national 
interest,' and the mandate for 'flexibility."' The brief contends that Congress resolved this 
"obscurity" and "preempted the USCI S" by passing the NCLBA "three years after NY SDOT was 
designated as a precedent decision," and that "the NCLB Act and the Obama Education Programs, 
taken collectively, provide the underlying context for the adjudication of a national interest waiver 
application made in conjunction with an E21 visa petition for employment as a Highly Qualified 
Teacher in the public education sector. " 
The references in the NCLBA to immigrants are to "immigrant students" and "immigrant children 
and youth." The brief cites no direct support for the claim that Congress intended for the NCLBA to 
affect the adjudication of national interest waiver applications. See Matter of Soffici, 22 I&N Dec. at 
165. 
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Section 203(b )(2)(A) of the Act includes the phrase "national ... educational interests .. . of the 
United States," but the assertion that the United States has "educational interests" does not create a 
blanket waiver for teachers. The same section of the law also subjects members of the professions 
(including teachers) to the job offer requirement. Statutory interpretation begins with the language 
of the statute itself. Pennsylvania Department of Public Welfare v. Davenport, 495 U. S. 552 (1990). 
Statutory language must be given conclusive weight unless the legislature expresses an intention to 
the contrary. Int'l Brotherhood of Electrical Workers, Local Union No. 474, AFL-CIO v. NLRB, 814 
F.2d 697 (D.C. Cir. 1987). Here, the petitioner has not established that Congress intended to exempt 
teachers from the job offer requirement, either through section 203(b )(2)(A) of the Act, the NCLBA, 
or any other federal legislation. Congress's only direct statement on the matter has been to apply, 
not waive, the requirement. 
The appellate brief discusses "the national priority of closing the achievement gaps between 
minority and nonminority students, and between disadvantaged and more advantaged children," but 
provides no evidence that the petitioner has narrowed those gaps on a nationally significantlevel. 
Regarding the petitioner's individual qualifications, the brief states: 
USCI S-Texas Service Center has not specified what it meant by 'any contributions of 
unusual significance that would warrant a national interest waiver.' There is no clarity 
on this particular requirement and yet, the Director has easily dismissed the 
incomparable accomplishments of [the petitioner] as submitted in her Case File. By 
requiring the petitioner to submit evidence of ambiguous nature is 'unduly burdensome' 
and in effect tantamount to requiring 'impossible evidence' for being extremely 
subjective .... 
[A]pparently, the Immigration Service is requiring .. . extraordinary ability which is 
over-reaching. 
The petitioner does not explain how the director has required evidence of extraordinary ability. The 
evidentiary requirements to establish extraordinary ability, at 8 C.F.R. § 204.5(h)(3), are neither 
identical nor similar to the guidelines in NYSDOT. The phrase "any contributions of unusual 
significance that would warrant a national interest waiver," although presented in the brief in quotation 
marks, does not appear in the denial notice. The denial does contain a similar passage: "At issue is 
whether this beneficiary's contributions in the field are of such unusual significance that the petitioner 
merits the special benefit of a national interest waiver. " The director provided a concrete example of a 
qualifying circumstance: "formulat(ing] new educational policies or strategies or techniques that have 
been widely implemented outside her school district. " 
The record does not support the claim, on appeal, that the petitioner "has submitted overwhelming 
evidence in the initial submission." The initial submission consisted almost entirely of documentation 
of the petitioner's work at the local level, such as classroom evaluations, professional development 
certificates, and letters from teachers and administrators which do not constitute 
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"overwhelming evidence" of eligibility. Instead, the brief revisits the contention that the passage of the 
NCLBA, and the existence of other federal education initiatives, have implied the existence of a blanket 
waiver for teachers without making express provisions for such a waiver or repealing the statute that 
holds teachers to the job offer requirement. These claims lack legal and factual support, and do not 
establish that the petitioner, by virtue of being an experienced special education teacher, qualifies for a 
national interest waiver of the statutory job offer requirement. 
II. Conclusion 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. NYSDOT, 
22 I&N Dec. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear frqm the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U. S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.