dismissed EB-2 NIW Case: Special Education

(b)(6)
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DATE: 
INRE: 
PETITION: 
MAR 1 8 2013. 
OFFICE: TEXAS SiVICE CENTER FILE: 
Petitioner: 
Beneficiary: 
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Immigrant Petition for Alien W oiker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursbnt 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 fmd 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 ori~inally decided your case. Please be advised 
that any further inquiry that you might have concerning your ca~e must be made to that office. 
If you believe the AAO inappropriately applied the law in rLching its decision, or you have additional 
information that you wish to have considered, you may file a ~otion to reconsider or a motion to reopen in 
I accordance with the instructions on Form I-290B, Notice of k_ppeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found ~t 8 C.F.R. § 103.5. Do not file any motion 
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directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
3o days of the deeision that the motion seeks to reconsider or rebpen. · 
Thank you, 
• 
on Rosenberg 
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) ofthe Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the profe~sions holding an advanced degree. The 
petitioner seeks employment as an elementary special edubation teacher for 
At the time she filed the petitiob, the petitioner taught at 
Mount Rainier, Maryland. The petiiioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certificatio'n, is in the national interest of the United 
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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 nbt established that an exemption :from the 
requirement of a job offer would be in the national interest df.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 oftheir exceptional ability in the sciences,jarts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciJnces, 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 Att0mey General deems it to be in 
the national interest, waive the requirements of ~ubparagraph (A) that an alien's 
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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 thb 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 tlie term "national interest." Additionally, 
Congress did not provide a specific definition of "in the bational interest." The Committee on the 
Judiciary merely noted in 
its report to the Senate that the ~mmittee had "focused on national interest 
by increasing th~ number and proportion of visas for immibants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Coqg., 1st Se~s., 11 (1989). 
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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 testJ 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 "exceptipnal."] 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 6wn merits. 
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In reNew York State Dept. of Transportation (NYSDO'I), 22·1&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considerbd 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 establish that the alien will ~erve the national interest to a substantially 
greater degree than would an available United States worket having the same minimum qualifications. 
While the national interest waiver hinges on prospective nltional benefit, the petitioner must establish 
that the alien's past record justifies projections· of futu~e benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in th~ future, serve the national interest cannot 
suffice to establish prospective national benefit. The int~tion behind the term "prospective" is to 
require future contnbutiohs by the alien, rather than toJ 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 
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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 ~ member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver jJst by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or hth- field ·of expertise. 
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The petitioner filed the F~rm I-140 petition on May 2, 2012. Accompanying evidence established 
thepetitioner's experience as a teacher in Maryland, Nort~ Carolina, and the Philippines, but neither 
counsel nor the petitioner explained why it would be in the national interest to waive the job offer 
requirement that normally applies to members of the ~rofessions, including special education 
teachers. Counsel pointed to the petitioner's advanced aegree and her length of experience, but 
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neither of those factors qualifies her for the waiver. The advanced degree is, by defmition, a 
fundamental requirement for classification as a member of the professions holding an advanced 
degree, and ten or more years of experience is a factor in establishing exceptional ability in the 
sciences, the arts or business (see 8 C.F.R. § 204.5(k)(3)(ii)(B)). Section 203(b)(2)(A) of the Act 
subjects both of those classifications to the job offer requJement. The national interest waiver is an 
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additional benefit, over and above the classification sought, and therefore eligibility for the 
underlying classification does not imply eligibility for the additional benefit of the waiver. 
The petitioner submitted copies of various materials relating to her work, including certificates, 
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evaluations and photographs. Similarly, several witness 1letters show that colleagues, students and 
administrators hold the petitioner in high regard. These rhaterials demonstrate that the petitioner is 
a successful teacher, but they do not self-evidently set he~ apart from other competent and qualified 
teachers. The materials also do not show that the petitioner's work has or will directly result in 
significant benefits beyond her own classroom and the loc~l school systems that have employed her. 
On July 21, 2012, the director issued a request for evlidence .. The director acknowledged the 
petitioner's submission of several certificates and "numerJus letters of supports [sic] stating what an 
excellent, dedicated, and helpful teacher she was," but tfte director found that such evidence does 
not "demonstrate a past history of achievement with sofne degree of influence on the field as a 
whole." The director stated: 
It appears, based on the evidence, that [the petitioner's] impact has been limited to 
the school at which she is employed in the state df Maryland; therefore, the benefit 
ofher skills have [sic] been limited to. a small area! and not experienced on a national 
level. The petitioner also has not established that she will serve the national interest. 
In response, the petitioner submitted a copy of her Laster's thesis and various background 
documents. Counsel stated: 
Since a 'National Special Education Teacher' is not even a real concept but more of 
metaphysical cognition [sic], undersigned ·wishe~ to once again posit a realistic 
proposition upon which to establish that the sblf-petitioner's contributions will 
impart national-level benefits. 
Even authors of books, treatises and other academic materials on S~ecial Education 
are not in any standing [sic] to claim that their .ctmtributions are n~tional in scope 
since not all special education teachers can be said to utilize their works. 
The director did not state that the petitioner had to show that she is "a 'National Special Education 
Teacher,"' or that "all special education teachers ... utiliie [her] works." National scope is not the 
same as universal reliance on the petitioner's work. 
Counsel stated: "it is but harmless to assert that if an NIW Petition is made with premise on some 
prevailing Acts pf United States Congress, that by itself rbnders the proposed employment national 
in scope." This assertion may be "harmless," but it is' not persuasive. All employment-based 
immigrant classifications are based on "prevailing Acts of United States Congress," and so is the 
statutory job offer requirement. There is no rational basis ito conclude that Congress, by mentioning 
a given occupation in a particular piece of legislation, exempted aliens in that occupation from the 
job offer requirement. · I 
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PageS 
Counsel quoted remarks made by then-President /George H.W. Bush when he signed the 
Immigration Act of 1990, which created the national intbrest waiver: ''This bill provides for vital 
increases for entry on the basis of skills, infusing the ~anks 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 waiver for educators. The In'nnigration Act of 1990, however, was not 
restricted to the creation of the waiver. It was, rathef. an overhaul of the entire immigration 
structure, creating new employment-based immigrant classifications to replace the ''third 
preference" and "sixth preference" classifications previokly in place. "[S]cientists and engineers 
and educators" are all members of the professions who, uhder the terms dictated by Congress in the 
Immigration Act of 1990 (as it amended the Act), are all shbject to the job offer requirement. 
Counsel mentioned other legislation and court cases, lll of wliich affirmed the importance of 
·education but none of which exempted teachers :frotln the job offer requirement at section 
203(b)(2)(A) of the Act. 
Counsel acknowledged that the job offer/labor certification requirement exists to protect United 
States workers. Counsel contended that a waiver of that ~equirement would serve the same ultimate 
goa~ by allowing the petitioner to train ''today's students [who] need to be academically 
competitive to guarantee their employability." This cl~im assumes the conclusion that counsel 
meant to prove, specifically, that it is in the national interest for the petitioner, rather than a 
qualified United States teacher, to be the one teaching. those particular students. According to 
counsel's own statistics, the petitioner's credentials do not readily stand out. Specifically, counsel 
asserted that "59% [of] special educators in the nation [hbld] a Master's degree or equivalent," and 
''92% [of] special educators [have] full certification." These numbers indicate that nearly three out 
of five special educators in the United States possess prbfessional credentials Comparable to those 
of the petitioner. Nevertheless, counsel asserted that rio two teachers are truly alike, owing to 
intangible factors that the labor certification process tannot take into account. · Counsel then 
presumed that the petitioner is superior to United States workers in these unquantifiable areas. In 
effect, counsel declared the petitioner's superiority while also declaring that it would be impossible 
to measure this superiority, and therefore it would be pointless to try. The unsupported assertions of 
counsel do not constitute evidence. See Matter of ObaigbJna, 19 I&N Dec. 533, 534 n.2 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Mdtter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Counsel stated that ''the business model of the FortUne companies [indicates] that retaining is more 
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cost effective than recruiting new" workers, which "is the most practicable approach in this 
situation." By statute, eligibility for the waiver does Aot rest on what is "practicable" or "cost 
effective," but rather on what will serve the national ititerest. By counsel's logic, once an alien 
. works in the United States under an employment-based ftonimmigrant visa, that alien should never 
be subject to the job offer requirement because retairling the alien permanently is more "cost 
effective" and ''practicable" than providing employmeAt ·opportunities to United States workers 
through the labo~ certification process. Counsel has specplated at length about Congressional intent 
with respect to education and foreign workers, but it is an inescapable fact that Congress also 
created the job offer/labor certification requirement, andltherefore presumably intended for it to be 
used. 
(b)(6)Page6 
Counsel cited a study showing that special education te~chers "shift careers" and move to general 
education, and therefore "[t]he protection afforded for US workers enshrined in the labor 
certification process will not in any way be jeopard~ed by grant of waiver in favor of' the 
petitioner. The statutory standard is that the waiver will serve the national interest, and counsel's 
observation does not address that standard. Similarly, uhder the regulation at 8 C.F.R. § 103.3(c), 
NYSDOT is binding precedent on all USCIS employees, and counsel's attempts to set it aside and 
synthesize an.altemative standard from unrelated statutes cannot succeed. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." While AAO precedent decisions are binding on all 
USCIS employees in the administration of the Act, un~ublished service center decisions are not 
similarly binding. Furthermore, counsel has furnished 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 unwkranted. The only stated similarity is that 
the beneficiary of the approved petition is "also a teachet in 
System" Even assuming that the serVice center correctly approved that petition, the approval does 
not, in any way, endorse or lend weight to the assertion that teachers are collectively 
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entitled to a blanket waiver of the job offer/labor certification requirement. 
The director denied the petition on October 27, 2012[ stating once again that the petitioner's 
"impact 
has been limited to the schools where she has be~n employed." The director acknowledged 
the petitioner's evidence, but found that it did not meet thb guidelines set forth in NYSDOT. 
On appea~ counsel asserts that, at the time of NYSDOTl publication in 1998, there was no "clear-
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cut Congressional standard" for the national interest waiver. Counsel further contends that, after 
Congress passed the No Child Left Behind Act {NCLBk) three years later, "[t]here is no longer 
vagueness or obscurity" on the question of whether "hi~hly qualified teachers" serve the national 
interest. Counsel, however, identifies no special legislative or regulatory provisions that exempt 
school teachers from NYSDOT or reduce its impact on thclm 
The assertion that the NCLBA is tantamount to a retJction or modification of NYSDOT is not 
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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 199~, Pub.L. 106-95 (November 12, 1999), 
specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to 
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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 lso in direct response to NYSDOT, counsel 
has not made a persuasive claim that the NCLBA indirectlly implies a similar legislative change. 
Turning to immigration legislation, 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 qrullified 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 bbiness, will substantially benefit 
prospectively the national ••• educational inter~sts, ... of the United States, and 
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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 abridged phrase "national educational 
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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 a~ employer in the United States." Counsel 
has, thus, directly quoted the section of relevant law that 
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supports the director's conclusion. By the 
plain wording of the statute that counsel quotes on ~ppea~ an alien professional holding an 
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advanced degree is presumptively subject to the job offer requirement, even if that alien ''will 
substantially benefit prospectively the national ... educ~tional interests ... ofthe United States." 
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Neither the Immigration and Nationality Act nor the NCLBA, separately or in combination, create 
·or imply any blanket waiver for teachers, and any attdmpt to fashion. such a waiver out of the 
wording ofthe statutes must therefore fail. 
· Counsel asserted that the director "erred in disregarding evidence demonstrating the national scope 
of petitioner's proposed benefit through her [sic] effecti~e role in serving the national educational 
interest of closing the achievement gap." Closing that gJp is a national goa~ but it does not follow 
that the petitioner's efforts toward that goal are, themsJlves, national in scope. Counsel did not 
show that the petitioner;s individual work significantly 'i'clos[ ed] the achievement gap" outside of 
her own classroom. Counsel cited statistics showing ''tliat out of the 24 Maryland school districts 
ranked near the bottom" in 2012. By 2012, the ~etitioner had been working for for 
nearly five years. The district's continued low rankingjsuggests that, even at the local leve~ the 
petitioner's efforts have not resulted in measurable overafl improvements; the record does not show 
that the petitioner has transformed into a model for other districts to emulate. Counsel does 
not explain how the petitioner's future work will "clos[b] the achievement gap" when there is no 
evidence that her past work has done so to any significant! extent. · . 
Counsel repeatedly asserts that the NCLBA requires scJools to hire. "Highly Qualified Teachers," 
and that USCIS thwarts this requirement by rigidly enfo~cing NYSDOT. Section 1114(b)(l)(C) of 
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the NCLBA, 20 U.S.C. § 6314(b)(l)(C), dictates that "[a] schoolwide program shall include ... 
[i]nstruction by highly qualified teachers." The regulatibn at 34 C.F.R. § 200.56 defines the term 
"highly qualified teacher." Counsel did not discuss tHe regulation or Maryland's state-specific 
requirements, or cite any evidence to show that the labo~ certification· process does not permit the 
hiring of"highly qualified teachers.". It: by law, a teachJr must be "highly qualified" (which is the 
core of counsel's claim), then a teacher who does not! meet the applicable requirements is not 
"minimally qualified." Rather, such a teacher is urider~ualified 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 the statutory standard for such teachers, that term appears to be functionally 
equivalent to the term "minimally qualified" for purposes
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oflabor certification. Counsel submits no 
evidence to show that the Department of Labor has dknied labor certification to teachers with I . 
master's degrees; counsel simply speculates that this might occur in the future. Counsel denounces 
the labor certification process as ''tedious," but the natidnal interest waiver is not merely a means 
for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification 
process. NYSDOT, 22 I&N Dec. 223. 
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As is clear from a plain reading of the statute, engaging in a profession (such aS teaching) does not 
presumptively exempt such professionais from the 
requirenltent of a job offer based on national interest. 
Congress has not established any blanket waiver for teachets. Eligibility for the waiver rests not on the 
basis of the overall importance of a given profession, but bther 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 approvedlabor certification will be in thl national interest ofthe United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burd~n. 
ORDER: The appeal is dismissed.