dismissed EB-2 NIW Case: Special Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-B-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a special education teacher, seeks classification as a member of the professions holding 
an advanced degree. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S. C. 
§ 1153(b )(2). In addition, the Petitioner seeks a national interest waiver of the job offer requirement that 
is normally attached to this classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b )(2)(B)(i). This discretionary waiver allows U.S. Citizenship and Immigration Services 
(USCIS) to provide an exemption from the requirement of a job offer, and thus a labor certification, 
when it serves the national interest to do so. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner 
established his eligibility as an advanced degree professional, but did not establish that a waiver of the 
job offer requirement is in the national interest. 
The matter is now before us on appeal. On appeal, the Petitioner submits a brief in which he argues that 
the previously submitted evidence demonstrates his eligibility for a national interest waiver. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification normally requires 
that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
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 
Matter of B-B-C-
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) National interest waiver. ... 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.[1] 
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, 101 st Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 l&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must 
demonstrate that the national interest would be adversely affected if a labor certification were 
required by establishing that he or she will serve the national interest to a substantially greater degree 
than would an available U.S. worker having the same minimum qualifications. !d. at 217-18. 
While ;the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. !d. at 219, n.6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Matter of B-E'-C-
II. ANALYSIS 
The Director determined that the Petitioner qualifies as an advanced degree professional and that his 
proposed work as a special education teacher has substantial intrinsic merit. The two findings at 
issue in this matter are ( 1) whether the Petitioner established that the benefits of such work are 
national in scope as required under the second prong of the NYSDOT national interest analytical 
framework, and (2) whether he demonstrated sufficient influence on his field to meet the third prong 
of the NYSDOT analysis. 
At the time of filing the Form I-140, Immigrant Petition for Alien Worker, the Petitioner was 
employed as a special education teacher at m Georgia. The record 
indicates that he had worked for m 
since 2007, after having previously taught in the Philippines since 1987. 
In support of the Form 1-140, the Petitioner provided evidence of his credentials and experience as 
an educator. He submitted copies of his academic diplomas and transcripts, documentation showing 
his certification in Georgia to teach special education, copies of certificates for trainings that he 
completed, and evidence of his membership in professional associations. He provided letters and 
employment contracts documenting his work experience in the United States and in the Philippines, 
and verification of his salary in the United States. 
As evidence of his accomplishments as a teacher, the Petitioner submitted copies of certificates of 
recognition and appreciation, letters of thanks for his teaching, his support of student groups, and 
honors and awards that he received in recognition for his work with special needs students. The 
Petitioner also submitted evidence that he received an award as a finalist for the 20 12 
for the and that he was the recipient of the 
of the Year 2011 awarded by the In 
addition, he provided numerous letters from current and former colleagues, supervisors, and parents 
attesting to his noteworthy dedication and effectiveness as a special education teacher and a mentor 
to his students. 
In a supporting statement, the Petitioner indicated that he had received approval for a research study 
entitled, 
The Petitioner explained that this study was in 
its "data-gathering phase," and that the findings "will be disseminated to local education leaders, 
legislators both local and federal, and other education stakeholders who could foster legislation that 
addresses the needs of children with exceptionalities not only in GA but also nationwide." 
The Petitioner also submitted a copy of the research proposal endorsed by 
Principal. The Petitioner stated that, "an article based on the results of the study will 
be submitted to referred [sic] education journal, particularly to the 
of the The Petitioner indicated that his "forthcoming 
contributions will bring benefits not only to the students with moderate intellectual 
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Matter of B-B-C-
disabilities/special needs of Georgia, U.S., but also provide benefits that could impact on 
a national scale, particularly to the education stakeholders of the special education program as a 
whole." We note that the expectations of the Petitioner and regarding the possible 
future national impact of the Petitioner's work are not evidence of his eligibility for this 
classification. A petitioner must establish eligibility at the time of filing and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A petition may not be approved 
at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. 1tfatter 
ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). As the Petitioner has not published his research, it 
cannot establish his eligibility at the time of filing his petition. 
The Petitioner further explained that he had created and posted a teacher resource, · 
on an online discussion forum for teachers of exceptional 
children. The Petitioner noted that this posted resource was viewed 20 times and downloaded 16 
times, evidencing the national impact of his work. The Petitioner did not indicate who viewed and 
downloaded this resource, or that once downloaded, it was used by organizations nationwide. The 
Petitioner also pointed to a lesson that he created in which he developed a "mini store" in his special 
needs classroom that was then replicated by other teachers in his district and by one other teacher in 
Maryland. Replication at a localized level, in this case the Petitioner's school in Georgia and a 
single teacher in Maryland, does not indicate the Petitioner's work has been implemented on a 
national basis or that it is otherwise national in scope. 
The record also included letters of support from individuals within the Petitioner's community. For 
example, attorney at law, and father of one of the Petitioner's students, stated, 
"[The Petitioner] is highly skilled in adapting lessons in both academic and functional training to a 
variety of children based on their specific needs. He is creative and dynamic in offering alternative 
educational methods that build self-confidence and independence." Similarly, a former 
teacher, attested that she has regularly worked with the Petitioner and observed his teaching style 
and the "strategies and programs which [he] employs." She writes, "His tactics never cease to 
amaze me." While these letters indicate that the Petitioner is a dedicated and dynamic teacher, they 
do not support a finding that the Petitioner's work with a small group of students in one school is 
evidence of national impact. 
Several of the Petitioner's fellow teachers also submitted letters of recommendation. 
teacher at described how the Petitioner "certainly ranks among the 
top teachers whose performance for these years have been exemplary as he continues to effect 
positive changes among his students, his colleagues in general, and the community that he serves." 
a para-educator, with indicated that she has worked with many 
teachers and the Petitioner "exceeds them all." She goes on to state, "I have seen [the Petitioner] 
work with children of different levels of intellectual and physical abilities and challenges. He works 
extremely hard developing lesson plans and strategies to meet the students' individual needs." 
In denying the Form I-140, the Director acknowledged that the Petitioner's didactic skills have aided 
his students and noted the complimentary nature of the recommendation letters. However, the 
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Matter of B-B-C-
Director found that the he had not shown that the benefits of his proposed work would extend 
beyond his classroom or district, therefore being national in scope as required under the second 
prong of the NYSDOT analysis. The Director also found that the Petitioner had not demonstrated 
sufficient influence on his field to meet the third prong. 
In his brief on appeal, the Petitioner claims that the Director's conclusion that the record does not 
show that any of his instructional activities have been realized on a nationwide basis is factually 
incorrect. The Petitioner points to his work 
developing a lesson plan which was posted to an online 
teacher forum, which he states has downloaded 60 times as of August 5, 2013, a significant increase 
from the 16 times he indicated at the time of filing his petition. The Petitioner asks, "Could not the 
benefit bestowed by a teacher, or in this case, the petitioner/beneficiary, to his employer, the local 
school system, and especially to his students impart a substantial benefit, albeit indirect, to the 
national education system?" In addition, he maintains that his accomplishments are consistent with 
the level of past achievement required under NYSDOT. 
A. National Scope 
As stated above, the Director concluded that the proposed benefit of the Petitioner's work would not 
be national in scope. The Petitioner claims on appeal that his development of an online lesson and 
its dissemination through an online teaching forum evidenced by 60 downloads are sufficient 
evidence of the national scope of his work. We disagree. The Petitioner has not provided evidence 
to demonstrate that this lesson has impacted the field on a national level, or has been adopted by 
independent schools or districts beyond where the Petitioner has taught. For example, there is no 
evidence of who may have downloaded the lesson or whether it was implemented in any other 
classrooms, either in the Petitioner's district or beyond, or that 60 downloads is considered 
significant. 2 This evidence alone, therefore, is not sufficient to establish that the Petitioner's work is 
national in scope. 
With regard to the Petitioner's teaching duties, there is no evidence establishing that the benefits of 
his work would extend beyond his students and school district such that they will have a national 
impact. NYSDOT specifically addresses this issue: "Similarly, while education is in the national 
interest, the impact of a single school teacher 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." In the 
present matter, the Petitioner has not shown the his impact as a special education teacher extends 
beyond and, therefore, is national in scope. 
2 
For comparison, the Petitioner provides documentation that another article in the same forum that was published a 
month earlier, had no downloads and only 29 views. However the Petitioner has not shown 
that the articles are directed at the same audience and for the same purpose. Thus, there is no accurate basis of 
comparison for the two articles. Additionally, a comparison to a single article does not establish the national scope of the 
Petitioner's work. 
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(b)(6)
Matter of B-B-C-
The Petitioner also claims that his work is national in scope as evidenced by the fact that he has 
received approval for a research study currently in its "data-gathering phase," and that the findings 
of this study will be disseminated nationwide. As stated above, future projections of national impact 
are not sufficient. A petitioner must establish eligibility at the time of filing and must continue to be 
eligible for the benefit through adjudication . 8 C.F.R. § 103.2(b)(l) . 
Here, the record lacks evidence which establishes that the Petitioner 's work has influenced the field 
on a national level. None of the submitted documents establish that the Petitioner's specific work as 
a special education teacher have had a national reach as he has not documented evidence of his 
impact beyond the school and district where he teaches. A petitioner need not demonstrate notoriety 
on the scale of national acclaim, but the national interest waiver contemplates that his influence be 
national in scope. NYSDOT , 22 I&N Dec. at 217, n.3. Accordingly, the Petitioner has not established 
that he meets the second prong of the NYSDOT national interest analysis. 
B. Influence on the Field 
The Petitioner has not demonstrated sufficient influence on his field to satisfy the third prong of the 
NYSDOT analysis. While NYSDOT states that a petitioner must demonstrate that the national 
interest would be adversely affected if a labor certification were required, it goes on to explain that a 
petitioner makes such a demonstration by establishing that he or she will serve the national interest 
to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. I d. at 217-18. It further clarifies that, to do this, a petitioner must establish "a past 
history of demonstrable achievement with some degree of influence on the field as a whole." I d. at 
219, n.6. 
On appeal, the Petitioner asserts that he has submitted "certificates/news clippings and other 
documents of recognition for Outstanding Performance; performance evaluation documents, 
verification letters and documents of awards for work in the field," and states that "there was no 
mention or clear explanation as to how these records/documents inadequately measure up to the third 
factor." 
We acknowledge that the Petitioner has submitted documentation of his work at the local level , 
including evidence demonstrating the positive impact he has had on his own students and school 
. district and awards that he has won. The evidence does not establish, however, that he has had an 
influence on the field of special education generally. While particularly significant awards may 
serve as evidence of impact on a field, the Petitioner did not demonstrate that any of the awards or 
accolades submitted are indicative .of such influence. For these reasons, we find the record 
insufficient to establish that the petitioner has had some degree of influence on the field as a whole. 
As described above, the record contains letters of support from teachers and administrators who 
worked with the Petitioner at The references attest to the Petitioner's talent, 
dedication, and contributions to his students, but they did not indicate that he has had the wider 
impact and influence necessary to qualify for the national interest waiver under NYSDOT. 
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Matter of B-B-C-
For example, submitted a letter noting "[The Petitioner's] position at 
is an excellent opportunity to provide teaching innovations for the welfare of the students. I 
believe he clearly merits your recognition as someone of extraordinary abilities whose work 
performance has earned not only my respect and admiration but also of his colleagues and 
administrators, his students and their parents as well. His commitment and dedication to our school 
and our community is outstanding." Similarly, Special Education Teacher, 
says of the Petitioner, "It is not often that one finds a renaissance man such 
as [the Petitioner] in the area of Special Education ... His talents and hard-working momentum have 
raised the bar for excellence for his coworkers and students. This remarkable Special Education 
Teacher has truly changed the face of Special Education at our school." These references do not 
provide specific examples of how the Petitioner's work has affected teaching practices outside of 
or has otherwise influenced the field as a whole. 
We also note that in his appellate statement, the Petitioner mentions his teaching qualifications and 
awards as evidence of his impact on the field. Educational degrees, occupational experience, licenses 
and professional certifications, membership in professional associations, and recognition for 
achievements are elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), (C), (E), and (F), respectively. However, in this instance the Petitioner is 
seeking a waiver of the job offer as a member of the professions holding an advanced degree. We 
note that 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. Pursuant to 
section 203(b)(2)(A) of the Act, individuals of exceptional ability are generally subject to the job 
offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. 
NYSDOT, 22 I&N Dec. at 218, 222. Therefore, whether a given individual seeks classification as an 
alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above 
that ordinarily encountered in her field of expertise. The national interest waiver is an additional 
benefit, separate from the classification sought, and therefore eligibility for the underlying 
classification does not demonstrate eligibility for the additional benefit of the waiver. Without 
evidence demonstrating that the Petitioner's 
work has affected the field as a whole, employment in a 
beneficial occupation such as a teacher, therefore, does not by itself qualify him for the national 
interest waiver. 
The Petitioner provided copies of his performance evaluations from but he 
does not indicate how the submitted evaluations demonstrate that he has influenced the field to a 
substantially greater degree than other sirnilary qualified special education teachers. In light of the 
above, the Petitioner has not established that he meets the third prong of the NYSDOT national 
interest analytical framework. 
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Matter of B-B-C-
III. CONCLUSION 
Considering the letters of support and other evidence in the aggregate, the Petitioner has not shown 
that the proposed benefits of his work are national in scope. In addition, the Petitioner has not 
established that his past record of achievement is at a level that would justifY a waiver of the job offer 
requirement. The record does not establish that the Petitioner's work has influenced the field as a 
whole or that he will otherwise serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. A plain reading of the statute 
indicates that engaging in a profession (such as teaching) does not presumptively exempt such 
professionals 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. 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 petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. It is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: . The appeal is dismissed. 
Cite as Matter ofB-B-C-, ID 127439 (AAO Sept. 30, 2016) 
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