dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: JUL 1 5 2013 
INRE: 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://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
4?.6nRosenbe. 
Acting Chief, Administrative 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 (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced deQfee. The 
petitioner seeks employment as a special education resource teacher with 
The petitioner teaches at 
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 brief from counsel. 
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 
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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). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 "exceptional."] 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 Dept. of Transportation (NYSDOI), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
The USCIS 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. 
The petitioner filed the Form 1-140 petition on April 20, 2012. In an accompanying introductory 
statement, counsel stated that the "petition for waiver of the labor certification is premised on [the 
petitioner's] Master's Degree in Special Education [and] two (2) Bachelor's degrees ... which are 
from an accredited institution of higher education in the United States." Counsel evidently meant to 
say that the degrees are equivalent to degrees from institutions in the United States, because, as 
counsel elsewhere acknowledged, the petitioner's degrees are actually from universities in the 
Philippines. The degrees are necessary for the underlying classification (member of the professions 
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holding an advanced degree). That classification includes a job offer requirement, so the petitioner's 
degrees cannot, on their face, demonstrate eligibility for a waiver of that same requirement. 
Counsel asserted that the petitioner "was nominated for the 'Teacher of the Year Award."' The 
record contains background information about the award at both the county and state levels, but 
there is no claim and no evidence that the petitioner received the award. At best, the nomination 
constitutes recognition from because the principal of that school signed the 
nomination letter. The petitioner's only other claimed recognition is a "Certificate of Achievement" 
she received "during American Education Week 2006" from the county executive of 
- - The record does not reveal how many other teachers received similar 
certificates at the time. 
Counsel also noted that the petitioner has worked in her field "for more than twenty five (25) years 
now." Degrees, experience, and recognition can form elements of a successful claim of exceptional 
ability in the sciences, the arts, or business. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B), and (F). 
Exceptional ability, in turn, is not grounds for the waiver. As noted previously, section 203(b )(2)(A) 
of the Act plainly states that an alien of exceptional ability, like a member of the professions holding 
an advanced degree, is presumptively subject to the job offer requirement unless he or she makes an 
affirmative showing of eligibility for the national interest waiver. 
Much of the initial submission consisted of letters from administrators, teachers, and students. 
These witnesses attested to the petitioner's skills as a teacher and (in the Philippines) as an 
administrator. The petitioner submitted two versions of a letter from mathematics 
chairperson at One version of the letter (a photocopy in the record) 
supported the petitioner's nomination for teacher of the year. In the other version, 
stated that the petitioner assisted "a student who was failing everything," and that the student later 
"passed both of the Maryland State Assessments." stated that "others ... have 
benefited from [the petitioner's] work," but did not show a wider impact. Instead, she stated: "I 
respectfully ask that you consider the impact that [the petitioner's] loss would be to our school and 
our staff." Other witnesses offered similar statements to the effect that the petitioner's greatest 
impact has been within her articular school. The letters portray the petitioner as a valued member 
of the 
The petitioner submitted charts showing that, out of 14 special education 
students, 10 met the 2011 proficiency goal in mathematics and 11 met the goal in reading. Other 
categories of students showed proficiency rates of 89% or higher. 
The director issued a request for evidence on September 21, 2012, instructing the petitioner to 
submit evidence of impact on the field as a whole, as opposed to at schools where she has worked. 
In response, counsel protested that, using a "strict implementation of In the Matter of New York 
Department of Transportation, the US CIS-Texas Service Center has denied a considerable number 
of cases of our client-teachers' National Interest Waiver self petitions." Counsel acknowledged that 
the director is "required by law" to follow NYSDOT, but counsel asserted "the Service has legal and 
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factual bases to approve Highly Qualified Teachers' National Interest Waiver applications without 
offending the principles enunciated in the Matter of New York Department of Transportation." 
Counsel asserted that section 203(b )(2)(B)(i) of the Act does not contain clear guidance on eligibility 
for the waiver, and claimed that Congress subsequently filled that gap with the passage of the No 
Child Left Behind Act (NCLBA). Counsel noted that Congress passed the NCLBA three years after 
the issuance of NYSDOT as a precedent decision, and claimed that "[t]he obscurity in the law that 
NYSDOT sought to address has been clarified," because "Congress has spelled out the national 
interest with respect to public elementary and secondary school education" through such legislation. 
Counsel, however, identified no specific legislative or regulatory provisions that exempt school 
teachers from NYSDOT or reduce its impact on them. 
Counsel claimed that the benefit from the petitioner 's work is national in scope because of "the 
national priority of closing the achievement gaps between minority and nonminority students, and 
between disadvantaged and more advantaged children." The text of NYSDOT differentiates between 
an occupation of national importance and the impact of one worker within that occupation, citing, as 
an example, a profession that closely mirrors the facts of the present proceeding: "while education is 
in the national interest, the impact of a single schoolteacher in one elementary school would not be 
in the national interest for purposes of waiving the job offer requirement of section 203(b )(2)(B) of 
the Act." ld. at 217 n.3. 
Counsel asserted that the petitioner 
"is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering, and mathematics), but the record does not support this claim or 
even indicate that the petitioner specializes in teaching those subjects. 
Counsel stated that "the National Educational Interests ... would be adversely affected if a labor 
certification were required," because the Teach for America program has produced disappointing 
results. This assertion incorrectly presumes that the only two available options are to continue 
relying on the flawed Teach for America program, or to grant the national interest waiver. In 
repeatedly citing the NCLBA in support of the waiver claim, counsel did not cite any evidence to 
show that the NCLBA had produced better results than Teach for America. 
Counsel cited a study showing that special education teachers have a higher turnover rate than 
teachers in other specialties. A greater number of vacancies, however, would tend to facilitate rather 
than hinder the approval of labor certifications for such teachers. Indeed, the petitioner herself 
already obtained an approved labor certification. 
Part 4, line 6 of the Form 1-140 petition asked: "Has any immigrant visa petition ever been filed by 
or on behalf of this person?" The petitioner answered "No." USCIS records show that this answer 
was not correct. applied for a labor certification on April 30, 2008. Following its approval 
on July 17, 2008, filed its own Form I-140 petition, with receipt number 
on October 1, 2008, seeking to classify the beneficiary as a member of the professions under section 
203(b)(3)(A)(ii). The director approved the petition on February 13, 2009, more than three years 
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before the petitioner filed the present petition on her own behalf. Hypothetical reasons why the 
petitioner might not be able to secure a labor certification fail, because the petitioner already has an 
approved labor certification (and, through it, an approved immigrant petition). 
Counsel stated that another eacher received a national interest waiver, and asked that the 
present petition "be treated m 
t e same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contained in the record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, unpublished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). 
Furthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Without such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only stated similarity is that the beneficiary of the 
approved petition is "also a teacher in " 
The director denied the petition on January 23, 2013. The director stated that the petitioner's 
occupation has substantial intrinsic merit, but found that the petitioner had not met the other two 
prongs of the NYSDOT national interest test. The director stated that the NCLBA does not negate 
the statutory job offer requirement at section 203(b )(2)(A) of the Act. 
On appeal, counsel states: "on the issue of applicability of the 'Matter of New York State Dept. of 
Transportation[ '] to the NIW petitions by 'Highly Qualified Teachers,' USCIS erred in giving 
insufficient weight to the national educational interests enunciated in the No Child Left Behind Act 
of 2001 as the guiding principle rather than the precedent case which involved an engineer." 
While NYSDOT "involved an engineer," the three-pronged national interest test is, by design, 
broadly applicable. The precedent decision is binding across the immigrant classification, not 
limited to engineers. Counsel has claimed that "the issue of applicability" of NYSDOT is open to 
debate, but as a published precedent, NYSDOT is binding on all USCIS employees. See 8 C.F.R. 
§ 103.3(c). 
Counsel states that NYSDOT fails to take into account "subsequent legislations intended to provide 
guiding principles to implement Immigration Act of 1990 (IMMACT 90) in favor of Highly 
Qualified Teachers." Counsel does not identify any legislation that specifically grants the waiver to 
such teachers, but in context, counsel appears to refer to the NCLBA. That legislation, however, did 
not amend section 203(b )(2) of the Act or otherwise mention the national interest waiver. In 
contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 
Stat. 1312 (1999), specifically amended the Immigration and Nationality Act by adding section 
203(b )(2)(B)(ii) to that Act, to create special waiver provisions for certain physicians. Because 
Congress not only can amend the Act to clarify the waiver provisions, but has in fact done so in 
direct response to NYSDOT, counsel has not established that the NCLBA indirectly implies a similar 
legislative change. Counsel claims: "Congress legislated NCLB to serve as guidance to USCIS in 
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granting legal residence to 'Highly Qualified Teachers,"' but cites nothing from the statute or from 
any secondary source to support this claim. The NCLBA is not an immigration statute. 
Counsel states: 
With respect to the E21 visa classification, INA § 203(b )(2)(A) provides in relevant 
part that: "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 ... educational interests, ... of the United States, and 
whose services in the sciences, arts, professions, or business are sought by an employer 
in the United States. 
(Emphasis added.) Counsel, above, highlighted the phrase "national educational interests," but the 
very same quoted passage also includes the job offer requirement, i.e., the requirement that the 
alien's "services ... are sought by an employer in the United States." Counsel has, thus, directly 
quoted the statute that supports the director's conclusion. By the plain wording of the statute that 
counsel quotes on appeal, an alien professional holding an advanced degree is presumptively subject 
to the job offer requirement, even if that alien "will substantially benefit prospectively the national .. 
. educational interests ... of the United States." Neither the Immigration and Nationality Act nor the 
No Child Left Behind Act, separately or in combination, create or imply any blanket waiver for 
teachers. 
Counsel stated that the director's "decision found [the petitioner's] achievements as insufficient but 
USCIS did not present even one comparative candidate having at least the equivalent 
accomplishment as that of [the petitioner] to support its determination." 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The director bears 
no burden of proof in this proceeding, and need not produce a "comparative candidate" to justify a 
denial decision. There is no presumption of eligibility that the director must rebut. 
Counsel contends that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. Counsel's contention rests on 
the incorrect assumption that the NYSDOT guidelines amount to little more than an item-by-item 
comparison of an alien's credentials with those of qualified United States workers. The key 
provision in NYSDOT is that the petitioner must establish a record of influence on the field as a 
whole. !d. at 219, n.6. To do so does not require an invasive review or comparison of other 
teachers' credentials. 
Counsel quotes remarks made by then-President George H.W. Bush when he signed IMMACT 90, 
which created the national interest waiver: "This bill provides for vital increases for entry on the 
basis of skills, infusing the ranks of our scientists and engineers and educators with new blood and 
new ideas." Counsel interprets this passage to mean that Congress created the national interest 
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waiver for educators. IMMACT 90, however, was not restricted to the creation of the waiver; it 
restructured the immigration classification system, and that very legislation subjected members of 
the professions, including "scientists and engineers and educators," to the job offer requirement. 
The national importance of "education" as a concept, or "educators" as a class, does not lend 
national scope to the work of a single kindergarten teacher. 
Counsel maintains that the labor certification process impedes the employment of "Highly Qualified 
Teachers," but counsel does not explain how this is so. Section 9101(23) of the NCLBA defines the 
term "Highly Qualified Teacher." Briefly, by the statutory definition, a "Highly Qualified" 
elementary school teacher: 
• 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 
• has demonstrated, by passing a rigorous State test, subject knowledge and teaching 
skills in reading, writing, mathematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienced teachers not "new to the profession") 
demonstrates competence in all the academic subjects in which the teacher teaches 
based on a high objective uniform State standard of evaluation. 
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." Counsel does not explain how the above requirements are incompatible with the 
existing labor certification process. The petitioner's own approved labor certification stated that an 
applicant for her position must hold at least a bachelor's degree in education, and "[m]ust have or be 
immediately eligible for Maryland Teaching Certificate," requirements that are fully compatible with 
the statutory definition of a "Highly Qualified Teacher." 
By statute, engaging in a profession (such as teaching) does not presumptively entitle such professionals 
to the national interest waiver. Congress has not established any blanket waiver for teachers. Eligibility 
for the waiver rests not on the basis of the overall importance of a given profession, but rather on the 
merits of the individual alien. Furthermore, the petitioner has provided conflicting information that 
casts doubt on fundamental claims and indicates that she has left the occupation on which the waiver 
request rests. 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. 
The AAO will dismiss the appeal for the above stated reasons. As stated previously, in visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act; Matter of Otiende, 26 I&N Dec. 128. Here, the petitioner has not met that 
burden. 
ORDER: The appeal is dismissed.