dismissed EB-2 NIW Case: Special Education

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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 
DATE: OFFICE: TEXAS SERVICE CENTER 
MAR 1 8 2013 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
· Degree or ari 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 in your case. All· of the documents 
related to this· matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. . I 
- .. 
If you believe the AAO inappropriately applied the law in reaching its decision,. or you have additional_ 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
. accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(a)(l)(i) requires any motion to be filed within 
_/ . 
30 days of the decision that the motion seeks to_ ~econsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Adffiinistrative 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 holdin~ an advanced de~ee. The 
petitioner seeks employment as a special education· teacher for 
She has taught at since 2008. 
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 ajob offer would be in the 
national interest ofthe 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, wa1ve the requirements ofsubparagraph (A) that an alien's 
services in the sciences, arts, professions, or.business be sought by an employer 
in the United States. 
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). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 
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 
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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 ot: 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 (NYSD01), 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. N e~, 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 contnbutions 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 J entirely 
speculative. 
The AAO also notes that 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 su~ject 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 abo_ve that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140 petition on April 17, 2012. In an accompanying statement, 
counsel stated: 
[The petitioner's] accomplished dedication ... has not only theoretically helped 
improve the education in the country but most importantly has in the process 
completely. and realistically re-created the young lives of students worth living as 
. evidenced by the testimonials from the grateful former students themselves. And as 
we know, these heartfelt testimonials are as powerful as any award or citation from 
recognizing bodies. 
In addition, the merit of [the petitioner's] request for National Interest Waiver is 
based on the improvement to the United States Education more particularly in 
the field of Special Education, which she has actually already been fulfilling as 
Special Education Teacher in the State of Maryland since Notwithstanding 
this, [the petitioner] is determined to continue her selfless service to the nation of 
improving the Special Education in the United States of America by challenging 
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other public schools in the country to equal at least or better yet surpass the progress 
obtained by her students in Maryland. · 
What makes [the petitioner's] request for National Interest Waiver even more 
meritorious aside from her life changing commitment is the totality of circumstance 
underlying her profession including the fact that she is one of the very few 
educaton who was acclaimed as 
in 
Washington, DC. · 
(Counsel's emphasis.) The unsupported assertions of counsel do not constitute evidence.· See Matter 
of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 198Q). Therefore, it is necessary to 
examine the evidence submitted in support of the petition. In terms of the petitioner "challenging 
other public schools in the country'' to match or exceed her students' progress, the petitioner must 
show, first, that her students have in fact made a conspicuoUsly significant level of progress in 
comparison with other special education students, and second, that teachers and schools across the 
nation are aware of the "challenge" that counsel claimed the petitioner has posed. In this regard, 
letters from former students, whatever their emotional appeal, do not show the broader impact and 
influence that the NYSDOT guidelines demand. · 
Regarding counsel's assertion that the petitioner "is one of the very few educators who was 
acclaimed as· . ., ., - ., -
" the record contains a copy of a November 16, 2011 letter on 
You have been chosen from an impressive list of highly qualified teachers to be~ 
commended for your achievements in teaching and mentoring .... 
By nominating your high-achieving middle school students, you will set in motion 
their personal invitations to attend the 
We have allocated 
space for you to nominate up to 1 0 of your top stUdents. 
There is no indicatio that beinl! "acclaimed as ' involved more than that 
phrase appearing in letter. The record contains no background documentation to show 
how many teachers rece1veo such letters. Without such evidence, the assertion that ''very few 
educators" rec~ived the letter is unsupported and unwarranted. The letter is, on its face, an effort to 
solicit nominations and applications for participants in the conference. ·As such, the letter appe~s to 
be promotional literature for the organization. Nothing in the record gives the letter 
greater significance. 
An undated letter from certification specialist at "ser'Ves as official 
notification of[the petitioner's] Highly Qualified (HQ) status for [her] special education assignment 
at for the 2010-2011 school year." The letter makes it clear that the term 
"Highly Qualified" is a specific designation with defined requirements, but the record does not 
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identify those requirements except for"submission of the document." With respect to the 
significance of the designation, the petitioner has not established that the HQ designation is a rare or 
unusual honor. 'Rather, implied the opposite, by stating: "As you are the teacher of 
record, you are required to be HQ in the content area(s) you are teaching your special education 
students." The quoted passage indicates ·that HQ designation is a basic qualification for the job, 
rather than a mark of distinction. . 
·The petitioner submitted copies of various materials relating to her work, including certificates, 
evaluations and .. photographs. Similarly, several witness letters show that colleagues and 
administrators hold the petitioner in high regard. These materials· demonstrate that the petitioner is 
a successful and dedicated teacher, but they do not self-evidently set her apart from other competent 
and qualified teachers. 
On June 9, 2012, the director issued a request for evidence. The director noted that the petitioner is 
the beneficiary of an approved immigrant petition filed by . The director instructed the 
· petitioner to "submit evidence that the beneficiary's contributions will impart national-level 
benefits," and stated: ''The petitioner must establish she has a past record of specific prior 
achievement with some degree of influence on the field as a whole. The petitioner's previous 
influence on· the field as a whole must justify projections of future benefit to the national interest." 
In response, counsel asserted that it is uqrealistic to expect a special education teacher's work to 
produce a benefit that is national in scope. This observation is consistent with NYSDOT, which 
contains the following passage: "While education is iri the national inter~st, 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) ofthe Act." /d. at 217 n.3. Co\msel, however, 
contends that ''the proposed employment [is] national in scope" because "Acts of Congress and 
other pronouncements" have stressed the importance of educators and education. In this way, 
oounsel conflates the national importance of "education" as a concept, or "educators" as a class, 
with the impact of one teacher. The undeniable importance of ~ucation as a whole does not imply 
that Congress has indirectly exempted t~achers such as the petitioner from the job offer 
requirement. 
Counsel contends that the labor certification process ''would not meet the objective of the employer 
to hire highly qualified teachers pursuant to No Child Left Behind." Section 1114(b)(1)(C) ofthe 
No Child Left Behind Act, 20 U.S.C. § 6314(b)(1)(C), dictates that "[a] schoolwide program shall 
inelude ... [i]nstruction by highly qualified teachers." The regulation at 34 C.F.R. § 200.56 defines 
the term "highly qualified teacher," and the regulation at 34 C.F.R. § 300.18 lists supplementary 
requirements for "highly qualified special education teachers." Counsel did not discuss those 
regulations or Maryland's state-specific requirements, or cite any evidence to show that the labor 
certification process does not permit the hiring of "highly qualified teachers.", If, by law, a teacher 
must be "highly qualified," then a teacher who does not meet the applicable requirements is not 
"minimally qualified." Rather, that teacher is underqualified or . unqualified. Counsel has not 
shown that the labor certification process has forced or any other Maryland jurisdiction to 
hire teachers who do not meet the requirements of "highly qualified teachers." Rather, because 
"highly qualified" is statutory standard for such teachers, that term appears to be functionally 
equivalent to the term "minimally qualified" for purposes of labor certification. 
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Counsel stated that ''unquantifiable factors that zero in on 'passion'" distinguish the petitioner from . . 
qualified United States workers. This unprovable assertion attempts to sidestep, rather than meet, 
the "national scope" prong of the NYSDOT national interest test. Furthermore, because the 
regulations contemplate a specific definition of "highly qualified teachers," counsel cannot 
arbitrarily substitute a new definition of the term that includes the petitioner while excluding 
similarly qualified United States workers based on admittedly ''unquantifiable factors." Counsel's 
assertion that the petitioner is a "truly prepared, duly qualified, well-recommended and worthy 
candidate to continue serving her students" (counsel's emphasis) is, likewise, beside the point. The 
director did not assert that the petitioner is unqualified to work as a teacher for Rather, the 
petitioner has sought an additional immigration benefit (the national interest waiver) beyond the 
basic immigrant· classification, and the director found that the petitioner had not submitted sufficient 
evidence to qualify for that additional benefit. .Many of counsel's core assertions rest on the false 
premise that NYSDOT does not, or should not, apply to school teachers. 
The petitioner submitted additional certificates and evaluations, as well as further background 
information about public education. The background materials are general in nature, and therefore 
do not pertain specifically to the petitioner. The certificates and evaluations, like those submitted 
previously, acknowledge the petitioner's "service" and "effort," factors that the director_ had not 
questioned. The materials did not show that the petitioner, while working for has had a 
significant impact on education outside or is likely to do so in the future. 
The director denied the petition on November 2, 2012, stating that the petitioner had not established 
a 
past record of achievement and influence that would justify the special benefit 'of the national 
interest waiver. The director quoted from several witness letters and acknowledged counsel's 
assertions, but found that. the petitioner had not addressed basic .requirements of the NYSDOT 
national interest test. ·j 
On appea~ ·counsel notes that Congress passed the No Child Left Behind Act three years after the 
issuance ofNYSDOT as a precedent decision, and that therefore "[t]here is no longer vagueness or 
obscurity'' on the question of whether "highly qualified teachers" serve the national interest. 
Counse~ .however, identifies no special legislative or regulatory provisions that exempt school 
teachers from NYSDOT or reduce its. impact on them. 
The .assertion that the No Child Left Behind Act is tantamount to a retraction or modification of 
NYSDOT is not persuasive; that legislation did not amend section 203(b)(2) of the Act. In contrast, 
section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95 (November 12, 
1999), specifically amel)ded the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) 
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, made a persuasive claim that the No Child Left Behin.d Act indirectly implies a 
similar legislative change. · 
Turning to immigration legislation, counsel states: 
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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." 
(Counsel's emphasis.) 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 section of relevant law that supports the director's conclusion. By the plain wording of 
·the statute that counsel quotes on appea~ an alien professional holding an advanced degree is 
presumptively subject to the job offer requirement, . even if that alien "will su~stantially 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, and any attempt to fashion such a waiver out of the 
wording of the statutes must therefore fail. 
'-
Counsel asserted that the director "erred in disregarding evidence demonstrating the national scope 
of 'petitioner's proposed benefit through her effective role in serving the national educational 
interest of closing the achievement gap." Closing that gap is a national goa~ but it does not follow 
that the petitioner's efforts toward that goal are, themselv·es, national in scope. Counsel did not 
show that the petitioner's individual work significantly "clos[ed] the achievement gap" at a national 
·level, rather than locally in one district, one school, or one classroom. 
Counsel lists five previously submitted exhibits, calling them "awards" and stating that they 
constitute "overwhelmmg evidence" that the petitioner "has a past history of achieyement with 
some degree of influence on the field of math education as a wP,ole." Counsel does not explain this 
contention. The five exhibits comprise the following: 
• A "Certificate of Recognition" from the . 
acknowledging the petitioner's ''Extraordinary Effort Working for 
Positive Changes in Special Educa~ion on behalf of the Special Education 
• A "Certificate of Appreciation" thanking the petitioner for her "support and 
participation of our 2009-:-2010 Assessments at 
• An "Outstanding Service certificate" from the 
thankirig the petitioner "for her invaluable contribution in giving 
academic help to the students of 
• The petitioner's ''Teacher Evaluations" from 2008 to 20.10, showing that the 
petitioner consistently received the ranking of "Satisfactory." The evaluation 
forms show only three rankings: "Satisfactory," ''Needs to Improve" and 
''linsatisfactory''; and 
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• A "Classroom Observation" ·form describing a 7th grade language arts class that 
the petitioner taught on March 25, 2010, with the objective of teaching students 
"to identify cause and effect." The form concludes with three recommendations: 
1. Please write your objective in behavior form (expected outcome) 
2. Continue to use :several strategies to help students understand the lesson. 
3. ·Continue the useoftechnology to motivate student learning 
Counsel fails to explain how the above activities (all of them local) constitute "overwhelming 
evidence" ofthe oetitioner's influence on the field as a whole. The petitioner has not shown how 
her work for which began in 2008, several years before the filing date, has produced 
benefits that are ·national in scope or will continue to do so in the future. 
Counsel contends that factors ·such· as ''the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers. This assertion is tenuous for a 
numberofreasons, not least ofwhich is counsel's attempt, elsewhere in this proceeding, to compare 
the petitioner to other qualified workers by declaring her to be so superior that to replace her 
would 
be a disservice to her students. 
Counsel denounces the labor certification process as ''tedious," but the national interest waiver is 
not merely a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor 
certificatiqn process. NYSDOT, 22 I&N Dec. 223. · 
As is clear from a plain reading of the statute, engaging in a profession (such as teaching) does not 
·presumptively exempt such professionals from the requirement of a job offer based on national interest. 
Congress has not established any blanket waiver for teachers. Eligibility for the waiver rests no~ on the 
b.asis of the overall importance of a given profession, but rather 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 136 ~. The petitioner haS not sustained that burden: 
ORDER: The appeal is dismissed.