dismissed EB-2 NIW Case: Special Education

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U.S. Department of Homeland S~urity 
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: MAR 0 8 2013 OFFICE: TEXAS SERVICE CENTER FILE 
INRE: Petitioner: 
Beneficiary: 
PETITION:· Immigrant Petition for Alien Worker as a Melber of the Professions Holding an Advanced 
Degree or an-Alien of Exceptional Ability Pur~uant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 11S3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
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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 chse must be made to that office.· 
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 almotion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice o~ Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found 
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at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § .J03.5(a)(l)(i) requires any motion to be filed within 
30 ~ys of the decision that the motion seeks to reconsider or teopen. 
Thank you, 
• 
Ron 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 petitioner filed a motion to reconsider, whic~ the director dismissed. 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) lfthe hnmigration and Nationality Act (the 
Act),. 8 U.S.C. § 1153(b)(2), as a member of the prof~s.sions holding an advanced degree. The 
petitioner ~eeks employment as a special education teacher! for 
I in Maryland. She has taught at Maryland, 
since 2005. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a 
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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 profession~ holding an advanced degree, but that the 
petitioner has not established that an exemption from the ~equirement of a job offer would be in the 
national interest ofthe United States. 
On appe_al, the petitioner submits a bri~f from counsel as well as background documentation. 
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 dbgrees or their equivalent or who 
be~ause of their exceptional 'ability in the sciences) arts, or business, will substanticilly 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services m the scibnces, 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 A.domey General deems it to be in 
the national interest, waive the requirements ofkubparagraph (A) that an alien's 
services in the sciences, arts, professions, or bu~iness 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 definitio~ 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 immfgrants who would benefit the United States 
economically and otherwise .... " S; Rep. No. 55, lOlst Cohg., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing le.Immigration Act of 1990, published at 
56 Fed. Reg. 60897, ?0900 (November 29, 1991), states: I 
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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 inte¥st] standard must make 
a showing 
significantly above that necessary to prove t~e "prospective national benefit" 
[required of aliens seeking to qualify as "except~onal."] The burden will rest with 
the alien to establish that exemption f,Tom, or waiver of, the job offer will be in the 
national interest Each case is to be judged on its twn merits. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which·must be consideted when evaluating a request for a national 
interest waiver. First, the petitioner must show that ~e alien seeks employment in an area of 
substantial intrinsic merit. Next, the petitioner must show ~at the proposed benefit will be national in 
scope. · Finally, the petitioner must establish that the ·a.J.ien will serve the national interest to a 
substantially greater degree than would an available UnitJI States work~ having the saine 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 fuulrre· benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in ilie future, serve the national interest cannot 
suffice to establish prospective national benefit. The intbntion behind the term "prospective" is to 
require future contributions by the alien, rather than td facilitate the entry of an alien with no I . 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
The USCIS regulation at 8 C.P.R. § 204.5(k)(2) defin
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es "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encounteredj' in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are riot exempt by virtue of their exceptional abilit~. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as 1a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver jhst by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or hbr field of expertise. 
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The_petitioner filed the Form 1-140 petition on March 1~, 2012. USCIS records show that 
filed a petition, with an approved labor certification, seetqng to classify the alien as a member of the 
professions under section 203(b )(3) of the Act. . The director approved that petition on July 10, 
2009; the approved petition has a priority date of Septerbber 29, 2008. There is no indication that 
withdrew that petition or that the director reJoked its approval; the approved petition 
remains in effect. For· nationals of the Philippines,[ such as the petitioner, that . immigrant 
classification is oversubscribed. The March 2013 Visa Bulletin shows a cutoff date of September 1, 
2006. Because the. petitioner's approved petition has a lhter priority date, she is not yet eligible to 
adjust status based on that approved petition. 
The petition included a statement in 
which the petitioner (Jescribed a successful and fulfilling career 
in special education. She did not, in this statement, direJtly address the eligibility requirements for 
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the national interest waiver. Rather, she acknowledged that she filed the petition as a means to 
avoid a temporary interruption in her ability to live and wbrk in the United States. She stated: 
Having taught in USA for almost-7 years now hl given m~ a mis~ion in my life to 
continue my job of helping my students the be~t way I can based from [sic] my 
education, trainings [sic] and experience. And Ijcan only do this if I am given the 
chance to continue my residency here in USA. I was sponsored by 
[sic] md currently I have a!n I140 wi.th a priority date of Sept. 
2008, but since has been debarred fromlcontinuing my sponsorship as per 
Department of Labor decision,_ then I have to ~nd another route to continue my 
advocacy of applying my profession for the .betterment of the students of 
USCIS invoked the debarment provisions of section 2112(n)(2)(C)(i) of the Act against 
owing to certain immigration violations by that employet. As a result, between March 16, 2012 to 
March 15, 2014, USCIS will not approve any emplo~ent-based immigrant or nonimmigrant 
petitions filed1 by This debarment means that!. is, temporarily, unable to file its 
own petition on the alien's behalf. (The debarment order does- not affect the validity of the 
· previously approved petition from 2008. It simply preveJts the appro.val of new petitions during the 
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prescribed period.) While oversubscription has delayed the petitioner's ability to adjust status based 
on her approved petition, and cannot file a sto~gap nonimmigrant petition on her behalf, 
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these factors are not sufficient cause for a national interest waiver; the petitioner still must 
demonstrate that the alien will serve the national intere~t to a substantially greater degree than do 
others in the same field. Cf NYSDOT, 22 I&N Dec. at 2i18 n.5 (unavailability of labor certification 
does not warrant approval of the waiver). 
Neither the Texas Service Center nor the AAO is respo11sible for tQ.e debarment, and those entities 
have no authority to override or modify it. The national interest waiver is not a means for aliens to 
override or avoid legal sanctions imposed on their intendirg employers 2 · 
The petitioner submitted copies of various materials relating to her work, including certificates, 
evaluations, classwork and photographs. Similarly, seve~al witness letters show that colleagues and 
administrators hold the petitioner in high regard. These in.aterials demonstrate that the petitioner is 
a successful teacher,.but they do not self-evidently set hdr apart from other competent and qualified 
teachers. 
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On June 26, 2012, the director issued .a request for evidence. The director noted that the petitioner 
is the beneficiary of an approved immigrant petition fi11ed by The. director stated: "The 
1 The list of debarred employers is available online at http://L.dol.gov/whd/immigration/HIBDebarment.htm 
(printout added to record February 27, 2013). . I 
2 With respect to this particular alien's ability .to work in the United States, the AAO notes that 
an educational staffing service) filed a nonimmigrant petition on the alien's behalf 
on September 28, 2012. The Director, Vermont Service Center, ~pproved that petition. The alien, therefore, holds 
H-IB nonimmigrant status allowing her to work for until September 19, 2015, by which point the debarment 
order against will have expired and the .visa number cutoff date will presumably have advanced closer, or past, 
the priority date of her approved immigrant petition. I . . 
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petitioner must establish that the beneficiary has a past ~ecord of specific prior achievement with 
some degree of influence on the field as a whole. The bJneficiary's previous influence on the fi_eld 
as a 
whole must justify projections of future benefit to thd national interest." 
In response, counsel asserted that it is unrealistic tQ exJect a special educatipn teacher' s work to 
produce a benefit that is national in scope. This obseryation is consistent with NYSDOT, which 
contains the following passage: "While education is in the national interest, the impact of a single 
schoolteacher in one elementary school would not be in ill~:' national interest for purposes of waiving 
the job offer requirement of section 203(b)(2)(B) ofthe!Act." !d. at 217 n.3. Counsel, 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, 
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counsel conflates the national importance of "educationj' as a concept, or ·"educators" as· a class, 
with the impact of one teacher. The undeniable importance of education as a whole does not imply 
that Congress has indirectly ·exempted teachers sucll as the petitioner from the job . offer 
requirement. 
Counsel claimed that the labor ceJ1ification process poses a "dilemma" for the petitioner because 
she possesses qualifications above the bare minimum required for the job she seeks, and therefore 
"the United States Department of Labor would .. ~ most likely recommend denial of the 
applicatio~" fo~ labor certific~t.ion. The Department ofj Labor, howe~er, has alr~ady approved a 
labor certificatiOn for the petitioner, and therefore counsel's speculation contradicts documented 
facts. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present ·petitio? ."be treate~ i~ ~e same light." Whi19 8 C.~.R . § 103.3~c~ ·pro_vides that AAO 
precedent decisions are bmdmg on all USCIS employees m the admirustration of the Act, 
unpublished decisions are not similarly binding. Furthenhore, counsel has furnished no evidence to 
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establish that the facts of the instant petition are similar to those in the unpublished decision. 
Without such evidence, the assertion that both cases meri~ the same outcome is unwarranted .. 
The director denied the petition on November 7, 2012, ·sJting 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 stated: 
Counsel's assertions regarding the overall importance of the beneficiary's area of 
expertise cannot suffice to establish eligibility fJr a national Interest waiver. The 
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issue in this case is not whether teaching education [sic] is in the national interest, 
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but whether the beneficiary, to a greater extent than U.S. workers having the same 
qualifications, 
plays a significant role in the field. 
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On appeal, counsel repeatedly refers to presidential spe~ches and federal initiatives such as the No 
Child _Left Behind Act (NCLBA), stating that "CongresJ has spelled out the national interest with 
respect to public elementary and secondary school educ~tion" through such legislation. Counsel, 
however, identifies no special legislative or regulatory ptovisions that exempt school teachers from . I . 
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NYSDOT or reduce its impact on them. Counsel notes that Congress passed the NCLBA ''three 
years after NYSDOT was designated as a precedent decision." 
The assertio~ that the NCLBA is tantamount to a re~jction or modification of NYSDOT is not - I 
persuasive; the NCLBA 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 lnimigration and Nationality 4'-ct 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 ~o in direct response to NYSDOT, counsel 
has not ni.ade a persuasive claim that NCLBA indirectly irhplies a similar legislative change. 
Counsel devotes some attention to the petitioner's inkividual qualific:tions, but mos~ of the\ 
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appellate brief consists of variations on the claim that well-qualified teachers, as a group, should be 
exempt from the job offer/labor certification requiremerlt, and that NYSDOT should not apply to 
them. Precedent decisions are binding on all USCIS eniployees in the administration of the Act. 
See 8 C.F.R. § 103.3(c). Counsel persuasively cites no ktatute, regulation or case law _that would 
require or permit USCIS to disregard NYSDOT as it appliJs to school teachers~ 
As is clear from a plain reading of the stat:ute~- engaging 1 a profession (such as teaching) does not" 
- _presumptively exempt such professionals from the 
requiretrlent of a job offer b~ed on national interest. 
Congress has not established any blanket waiver for teachetls. Eligibility for the 
waiver rests not on the 
basis of the overall importance of a given profession, but tather on the merits of the individual alien. 
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On the . basis of the evidence submitted, the petitioner ihas not established ·that a waiver of the 
requ~ent of an approved labor certification will be in thi 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. § 136L The petitioner has not sustained that burdJn. 
ORDER: 'Jbe appeal is dismissed.