dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: 
OCT 0 8 2013 
INRE : Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachu setts Ave., N.W., MS 2090 
Washingt on, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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 establi sh 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, tiling location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
))DtAdn~ 
( Ron Rosenberg 
"t Chief, Administrative Appeal s Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
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 degree. According to 
Part 6 of the Form I-140, the petitioner seeks employment as a "Special Education Teacher" for 
The petitioner has worked for since 2005. At the 
time of filing, the petitioner was teaching at Maryland. 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. 
The regulation at 8 C.P.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien, in duplicate." The petitioner did not execute this required document for the petition, and 
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therefore the petitioner has not properly applied for the national interest waiver. For this reason 
alone, the petitioner has failed to establish eligibility for the benefit sought. 
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 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 (NYSD01) , 22 I&N Dec. 215, 217-18 (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.P.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. 
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The petitioner has established that her work as a special educator is in an area of substantial intrinsic 
merit. It remains, then, to determine whether the proposed benefits of the petitioner's work would 
be national in scope and whether she will benefit the national interest to a greater extent than an 
available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver 
must rest with the alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. NYSDOT at 220. Moreover , it cannot suffice to 
state that the alien possesses useful skills, or a "unique background ." Special or unusual knowledge 
or training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department 
of Labor. I d. at 221. 
The petitioner filed the Form I-140 petition on June 29, 2012. In Part 4 of the Form I-140, the 
petitioner answered "no" to whether any petitions had previously been filed on her behalf. The 
record, however, reflects that filed a Form I-140 petition, with an approved labor 
certification , on her behalf on June 22, 2009, to classify her as a professional under section 
203(b)(3)(A)(ii) of the Act. The Texas Service Center approved the petition on June 30, 2009, with 
a priority date of August 10, 2008. 
In a June 28, 2012 letter accompanying the petition, counsel assetted that the petitioner's national 
interest waiver is based on her expertise in the field, advanced degrees, achievements, citations, and 
ten years of experience as a teacher. Academic degrees, experience, and recognition for 
achievements (such as citations) are elements that can contribute toward a finding of exceptional 
ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), and (F), respectively. Exceptional ability, in turn, is 
not self-evident grounds for the waiver. See section 203(b)(2)(A) of the Act. The petitioner's 
expertise as a special educator and recognized achievements will be further discussed later in this 
decision. 
Counsel further stated: 
[The petitioner] made an indelible impact in her school and community that they dread the 
idea of seeing her leave for good. But with the circumstances surrounding her immigration 
status this unsavory outcome is very possible - unless your good office acknowledges her 
expertise and her undeniable contributions to our national 
interest. 
The U.S. Department of Labor invoked the debarment provisions of section 212(n)(2)(C)(i) of the 
Act agains ~ owing to certain immigration violations by that employer. As a result, between 
March 16, 2012 and March 15, 2014, USCIS cannot approve any employment-based immigrant or 
nonimmigrant petitions filed by 1 This debarment means that is, temporarily, unable 
1 The list of debarred and disqualified employers is available on the U.S. Department of Labor's website. See 
http://www .dol.gov/whd/immigration/HlBDebarme nt.htm, accessed on September 6, 2013, copy incorporated into the 
record of proceeding . 
(b)(6)
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to file its own petition on the alien's behalf for a classification other than the one for which she was 
already approved, and thus explains why labor certification is not an option in the short term. The 
inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a 
national interest waiver; the petitioner still must demonstrate that she will serve the national interest 
to a substantially greater degree than do others in the same field. NYSDOT at 218, n.5. Any waiver 
must rest on the petitioner's individual qualifications, rather than on the circumstances that 
(temporarily) prevent from filing a petition on her behalf. 
In his letter accompanying the petition, counsel did not mention the NYSDOT guidelines or explain 
how the petitioner meets them. The record does not show how the petitioner's work would impact 
the field beyond With regard to the petitioner's special education teaching duties, there is 
no evidence establishing that the benefits of her work would extend beyond her students at 
_ such that they will have a national impact. !d. at 217, n.3 provides examples of 
employment where the benefits would not be national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the impact of 
an individual attomey working pro bono would be so attenuated at the national level as to be 
negligible. Similarly, 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. As another example, 
while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not 
be considered sufficiently in the national interest for purposes of this provision of the Act. 
In the present matter, the benefits of the petitioner's impact as a special educator would be limited to 
students at her school and, therefore, so attenuated at the national level as to be negligible . In 
addition, the record lacks specific examples of how the petitioner' s work as a teacher has influenced 
the education field on a national level. At issue is whether this petitioner's contributions in the field 
are of such unusual significance that she merits the special benefit of a national interest waiver, a 
benefit separate and distinct from the visa classification she seeks. A petitioner must demonstrate a 
past history of achievement with some degree of influence on the field as a whole. !d. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, teachers, and parents 
discussing her work as an educator. As some of the letters contain similar claims addressed in other 
letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate 
the nature of the references ' claims. 
Principal, , stated: 
[The petitioner] has been under my supervision for over 6 years. . . . [The petitioner] is an 
excellent teacher who exhibits profess-ionalism that ranks high in the school. She has served 
the school and her children superbly and continues to be a valued member of our staff. She 
is a contributing member of the Autism Program and has been for more than 6 years. 
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[The petitioner] actively participates in team building actiVIties, staff developments and 
school-wide activities. [The petitioner] participates in after-school, evening and special 
events. [The petitioner] is neat, organized, creative, and has a wealth of knowledge. She 
continues to display highly effective oral and written communication skills, and maintains 
effective home-school relationships with the parents and guardians of all children. 
In addition, [the petitioner] encourages all children to reach for their potential, and beyond. 
She is a visionary who wants all children to succeed and encourages them daily. Her 
commitment is to the children each year and she ensures that they are successful. She listens 
to children; talks with them, while analyzing what is in their best interest. 
Furthermore, [the petitioner] has been extremely successful at discovering the needs of her 
children with regards to educational and emotional problems, and is the ultimate advocate for 
all children. [The petitioner] has worked extremely well with the special education 
department here at understands and designs Individual 
Educational Plans (IEP). 
Mr. comments on the petitioner's activities at and her 
effectiveness as a teacher, but he does not indicate that the petitioner's work has had, or will 
continue to have, an impact beyond the students under her tutelage and the local school system that 
employed her. 
. Special Education Coordinator, stated: 
As a kindergarten teacher of autistic learners, [the petitioner] has consistently implemented 
the use of teaching strategies that are aligned with principles and standards found in 
Universal Design for Learning (UDL). She was responsible for executing the county 
curriculum as well as the mandates of student's Individualized Education Plans (JEP). Her 
use of alternative methods for instruction address student needs related to communication, 
sensory input, fine motor and gross motor tasks, fluency, attention and cognition, as well as 
social skills. 
* * * 
[The petitioner] showed great resolve and determination as she learned to deal with the many 
challenges that parents could bring to the table. She was open to support and suggestions at 
all times. Admirably she never lost site [sic] of her responsibility, educating her students. 
[The petitioner] has also been responsible for managing her paraprofessional staff as well as 
related services providers and IEP development. She has always been and continues to be 
diligent in her efforts to participate in professional development opportunities that maintain 
and increase her proficiency as a special educator. 
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[The petitioner] has become quite efficient in her ability to extract specific skills within the 
core academic content areas (math, reading, science, social studies) using creative methods to 
assess student achievement based on their academic, cognitive and functional capabilities. 
Over the past several years her skills and knowledge of the general education cuniculum has 
allowed her to work even closer with the general education kindergmten teacher in a co­
taught educational setting. [The petitioner] has regularly participated in "collaborative 
planning" with her general education counterpart. Now in her final year, [the petitioner] has 
transferred her experience s, strategies , and work ethic to our fifth grade self-contained autism 
class. She has been predictably successful. 
[The petitioner] has a wonderful personality and professional approach that drives her to 
continue to ask for input from those that have successfully come before her . She has a great 
rapport with the parent s/guardians of her students because she can answer the question 
"why?" through the collection of data. [The petitioner] will raise the level of professionalism 
of any staff based on her personal standards of performance. 
Mr. comments on the petitioner's ersonal qualities, professionalism, and activities as a 
special education teacher at but he doe s not indicate how the petitioner's 
impact or influence as a special educator is national in scope. In addition, Mr. points to the 
petitioner's teaching skills, knowledge of the general education curriculum, and experience. 
However, any objective qualifications which are necessary for the performance of the occupation can be 
articulated in an application for alien labor certification. NYSDOT at 220-221. 
National Board Certified Teacher, stated: 
[The petitioner] and I have taught together for 4 years at school. 
She is a master teacher and an excellent staff member on the special education department. 
She is a valuable member to our special education staff and contributes with her knowledge 
of early childhood and elementary education. 
During the time I taught with her she was highly skilled at differentiated instruction. She was 
also very involved with her students and their families , She consistently adapts the 
curriculum to meet her students' individual need s. She effectively implemented their IEP ' s. 
She also provides support to general education teachers on how to best support special 
education students in their classrooms . 
She continually demonstrates her professionalism in her day to day interaction with parents, 
administrators and educators. 
Ms. praises the petitioner's work at but Ms. s 
observations do not set the petitioner apart from other competent and qualified teachers, or explain 
how the petitioner 's work has impacted the field beyond her school. 
(b)(6) NON-PRECEDENT DECISION 
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a teacher, stated: 
I have known [the petitioner] for approximately five years. We had the opportunity to work 
together for these five years. During that time, we have been co-workers, and developed a 
friendship. We co-taught during our first year together. [The petitioner] is an excellent team 
player. We planned lessons together, did small groups and always considered what was best 
for the children. I have seen [the petitioner] grow over these past few years in her 
professional status. She has become a great classroom disciplinarian, has gained excellent 
classroom management skills and always teaches with excellence and knows how to meet the 
needs of the children while incorporating the curriculum in a fun and exciting way. 
[The petitioner] goes above and beyond the regular duties of teaching to ensure that her 
students meet success. She comes in early, stays late and her lessons far exceed the 
mandatory requirements for a good lesson. She has an excellent relationship with her 
parents, with her classroom assistants and the students. She does her reports, sets goals for 
students for IEP meetings, and does everything with excellence. 
Although I have been teaching in the county for a longer duration than [the petitioner], she 
has given me new ideas and a different perspective on how to reach students while 
implementing the curriculum . 
Ms. comments on the petitioner's effectiveness as a teacher, but Ms. fails to provide 
specific examples of how the petitioner's work has influenced the field as a whole. 
Music Teacher, 
From what I have seen and observed, [the petitioner] is a very good teacher. She always has 
her lessons prepared and laid out for parents, teachers, and administration to see. She also 
has a wonderful word wall to help the students learn to read. In addition, her classroom is 
very well organized, and she has set up stations with pictures and hands-on materials in order 
to help the students learn different subjects. 
She is very friendly and personal with the students, and yet, she knows how to command 
their attention and keep them in line. [The petitioner] probably has one of the hardest jobs in 
the school because she teaches young autism students how to learn academically, and she 
also succeeds in teaching them how to get along with other people, and how to express their 
emotions and feelings in an appropriate way, which can be extremely difficult to teach a 
child with autism at first. 
Ms. asserts that the petitioner is a "very good teacher" who manages her students effectively, 
but Ms. does not indicate how the petitioner's impact or influence as a teacher is national in 
scope. 
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a parent of a student who attends stated: 
[The petitioner] has served as my son's kindergarten teacher at in 
this school year. [The petitioner] played a critical role in 
helping my son, who has autism, transition to his new kindergarten environment. ... 
[The petitioner] brought stability to his classroom environment, and she has responded very 
favorably to and to us as parents. 
As a young child with autism, transitions are particularly challenging for [The 
petitioner] did her very best to accommodate to make him feel secure in his 
environment , and to modify the curriculum to address his complex developmental and 
emotional needs. 
* * * 
[The petitioner] is a tremendous asset to my son, the school and special needs children and 
families. 
Mr. speaks highly of the petitioner's interactions with his son, and his comments 
demonstrate that the petitioner works in an area of substantial intrinsic merit. However, Mr. 
s comments do not indicate that the petitioner's work has influenced the field as whole, or 
that the petitioner has or will benefit the United States to a greater extent than other qualified special 
education teachers. 
a parent of a student who attends stated: 
During the 2010 to 2011 school year my son was a student in [the 
petitioner's] kindergarten autism class. Along with several other students, my son, was able 
to excel beyond his grade level in [the petitioner's] classroom. His educational development 
progressed well beyond expectation s maintaining grade level skills in general education areas 
and his reading scores going above grade level. 
[The petitioner] is a first rate educator who care [sic] about the education and welfare of her 
students. She communicated with me techniques to be used at home to help my son with the 
daily pressures of school taking consideration for his needs as an individual. She was 
diligent in her task of keeping me informed of my son's progress and areas of concern that 
need to be addressed. Her teaching style is hands on and I am sure that my son enjoyed his 
time in her classroom. 
Ms. comments on the progress made by her son in the petitioner 's classroom and the 
petitioner's concern for her students, but Ms. fails to explain how the petitioner's work has 
influenced the field as a whole. 
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The petitioner's references praise the petitioner's teaching abilities and personal character, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of 
They also do not address the NYSDOT guidelines which, as published 
precedent, are binding on all USCIS employee s. See 8 C.F.R. § 103.3(c) . That decision cited school 
teachers as an example of a profession in a field with overall national importance (education), but in 
which individual worker s generally do not produce benefits that are national in scope. NYSDOT at 
217, n.3. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held , however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence . Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
In addition to the reference letters, the petitioner submitted the following : 
1. A "Certificate of Achievement" (2006) from the County Executive of s 
in honor of the petitioner's "service as an educator" in the system; 
2. A "Certificate of Appreciation" (2007) from the principal at 
in recognition of the petitioner's "valuable · contributions to the students" at that school; 
3. Academic tran scripts; 
4. A Maryland Educator Certificate with a validity period of July 1, 2009- June 30, 2014 ; 
5. A School Per sonnel Licensure Certificate from the State of New Mexico; 
6. A State ofColorado Professional Teacher's license; 
7. A "Certification of Eligibility" from the 
tating that the petitioner passed the "Professional Board Examination for 
Teachers " on ovember 25, 1990; 
8. A "Certification of Eligibility" from the 
stating that the petitioner passed the "Career Service (Professional) 
Examination" on July 31, 1988; 
9. Employment verifications from various schools where the petitioner has taught; 
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10. A December 1, 2011 e-mail from the Lead Certification Specialist for 
the petitioner of her "Highly Qualified" teaching status; and 
11. A Praxis Series test score report. 
informing 
Academic records, employment experience, licenses or professional certifications, and recognition 
for achievements are all elements that can contribute toward a finding of exceptional ability. See 
8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C), and (F), respectively. As noted previously, exceptional 
ability in the sciences, the arts or business is not sufficient to warrant the national interest waiver. 
The plain language of section 203(b )(2)(A) of the Act indicates that aliens of exceptional ability are 
subject to the job offer requirement (including alien employment certification). Particularly 
significant awards may serve as evidence of the petitioner's impact and influence on her field, but 
the petitioner has failed to demonstrate that the two awards she received (items 1 and 2) have more 
than local or institutional significance. There is no documentary evidence showing that items 1 - 11 
are indicative of the petitioner's influence on the field of special education at the national level. 
The petitioner submitted a copy of her 2008-2009 "satisfactory" teacher evaluation from and 
copies of her Student Teacher Evaluation forms from the 
The petitioner, however, did not submit documentary evidence indicating that she has 
impacted the field to a substantially greater degree than other similary qualified special education 
teachers. Moreover, there is no evidence showing that the petitioner's specific work has had 
significant impact outside of the schools where she has taught. 
In addition, the petitioner submitted numerous certificates of participation and completion for 
training courses and seminars relating to her professional development. While taking courses and 
attending seminars are ways to increase one's professional knowledge and to improve as a teacher, 
there is nothing inherent in these activities to establish eligibility for the national interest waiver. 
The director issued a Notice of Intent to Deny on October 29, 2012, informing the petitioner that she 
failed to "demonstrate that the benefits of [her] work extends [sic] beyond her immediate employers 
and classrooms, or otherwise imparts national-level benefits to the U.S." 
In response, the petitioner submitted President George H.W. Bush's "Remarks on Signing the 
Immigration Act of 1990"; an article entitled "Special Education Teacher Retention and Attrition: A 
Critical Analysis of the Literature"; an abstract for a report entitled "SPeNSE: Study of Personnel 
Needs in Special Education"; a statement by U.S. Secretary of Education Arne Duncan on the 
National Assessment of Educational Progress Reading and Math 2011 Results; information about 
Public Law 94-142; a copy the Supreme Court decision in Brown v. Board of Education, 347 U.S. 
483 (1954); a copy of Section 1119 of the No Child Left Behind Act (NCLBA); and a September 26, 
2011 article in Education Week entitled "Shortage of Special Education Teachers Includes Their 
Teachers." As previously discussed, general arguments or information regarding the importance of a 
given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves 
establish that an individual alien benefits the national interest by virtue of engaging in the field. 
NYSDOT at 217. Such assertions and information address only the "substantial intrinsic merit" 
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prong of NYSDOTs national interest test. None of the preceding documents demonstrate that the 
petitioner's specific work as a special educator has influenced the field as a whole. 
The petitioner's response also included a November 29, 2012 letter from counsel. In his letter, 
counsel quoted remarks made by then-President George H.W. Bush when he signed the Immigration 
Act of 1990, 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 waiver for educators. The Immigration Act of 1990, however, was not restricted to the 
creation of the waiver. It was, rather, an overhaul of the entire immigration structure, creating new 
employment-based immigrant classifications to replace the "third preference" and "sixth preference" 
classifications previously in place. "[S]cientists and engineers and educators" are all members of the 
professions who, under the terms dictated by Congress in the Immigration Act of 1990 (as it 
amended the Act), are all subject to the job offer requirement. 
Counsel asserted that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and that therefore "[t]here is no longer vagueness or obscurity like what 
happened in the New York State Department of Transportation case," because "the United States 
Congress, through the No Child Left Behind Act of 2001, has effectively preempted the Immigration 
Service to exercise ministerial duty in honoring the self-executory tenets embellished in" that 
legislation. Counsel, however, identified no specific legislative or regulatory provisions that exempt 
school teachers from NYSDOT or reduce its impact on them. 
Counsel further stated: 
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, mts, professions, or 
business are sought by an employer' in the United States. 
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." By the plain language of the statute that counsel 
quoted above, 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 
NCLBA, separately or in combination, create or imply any blanket waiver for foreign teachers. 
Counsel acknowledged that the job offer/labor certification requirement exists to protect United 
States workers. Counsel contended that a waiver of that requirement would serve the same ultimate 
goal, by allowing the petitioner to train "today 's students [who] need to be academically competitive 
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to guarantee their employability." Counsel further stated: "today's United States workers or Special 
Education Teachers are not as competitive as the foreign teachers who are already in the country 
since not all of them were educated by 'Highly Qualified Teachers."' This assertion relies on the 
presumption that all "foreign teachers" "were educated by Highly Qualified Teachers." Counsel 
cited no evidence to support that claim. Again, the unsuppmted assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 
n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Furthermore, counsel essentially contended that 
"foreign teachers," as a class, are eligible for a blanket waiver of the job offer requirement. As 
members of the professions, teachers are included in the statutory clause at section 203(b )(2)(A) that 
includes the job offer requirement. 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the U.S. Department of Labor considers a bachelor's degree, rather than a master's degree 
and experience, to be the minimum educational requirement for a special education teacher. The 
petitioner submitted information from the U.S. Department of Labor's Occupational Outlook 
Handbook describing the minimum qualifications necessary to become a special education teacher: 
Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
All states require public special education teachers to have at least a bachelor's degree. Some 
of these teachers major in elementary education or a content area, such as math or chemistry, 
and minor in special education. Others get a degree specifically in special education. 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification. 
* * * 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
(b)(6)
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Requirements for certification vary by state. However, all states require at least a bachelor's 
degree. They also require completing a teacher preparation program and supervised 
experience in teaching, which is typically gained through student teaching. Some states 
require a minimum grade point average. 
Many states offer general special education licenses that allow teachers to work with students 
across a variety of disability categories. Others license different specialties within special 
education. 
Teachers are often required to complete annual professional development classes to keep 
their license. Most states require teachers to pass a background check. Some states require 
teachers to complete a master's degree after receiving their certification. 
Some states allow special education teachers to transfer their licenses from another state. 
However, some states require even an experienced teacher to pass their own licensing 
requirements. 
All states offer an alternative route to certification for people who already have a bachelor's 
degree but lack the education courses required for certification. Some alternative certification 
programs allow candidates to begin teaching immediately, under the close supervision of an 
experienced teacher. 
Counsel asserted that the petitioner faces a dilemma if the labor certification process is required. 
Counsel contended that the petitioner possesses qualifications above the minimum required for the 
job she seeks, but cannot "tailor-fit" an application for labor certification to show those 
qualifications. The U.S. Department of Labor, however, has already approved a labor certification 
for the petitioner, and therefore counsel's assertions contradict the evidence in the record. 
Counsel further states: "Doing a labor certification process for the Self-Petitioner, faithful to the 
Foreign Labor Certification regulations, i.e., require only a bachelor's degree, would not meet the 
objective of the employer to hire highly qualified teachers pursuant to No Child Left Behind 
(NCLB) Law." 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. 
(b)(6)
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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." 
The petitioner has not established that the "Highly Qualified" standard involves requirements that 
are significantly more stringent 
than those outlined in the Occupational Outlook Handbook, or that a 
public school could not obtain a labor certification for a "Highly Qualified Teacher." Indeed, the 
petitioner's own approved labor certification required her to hold a bachelor's degree in education or 
biology, and to "have or be immediately eligible for Maryland Teaching Certificate," elements 
consistent with the "Highly Qualified" designation. Thus, the petitioner's level of education and 
experience are not required for "highly qualified" status under the NCLBA. Counsel, therefore, did 
not support the claim that the labor certification process frustrates the NCLBA' s mandate for schools 
to employ "highly qualified teachers." 
Counsel stated that "unquantifiable factors that zero in on 'passion"' distinguish the petitioner from 
qualified United States workers and that labor certification cannot take these factors into account, 
but the record contains no evidence to support the claims. As previously noted, the unsupported 
assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; 
Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Counsel cited a study showing that special education teachers "shift careers" and move to general 
education, and therefore "[t]he protection afforded for American workers enshrined in the labor 
certification process will not in any way be jeopardized 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, under the regulation at 8 C.P.R. § 103.3(c), NYSDOT is 
binding precedent on all US CIS employees, and counsel's assertions pertaining to an alternative 
standard from unrelated statutes cannot succeed. 
Counsel contended that, under the NCLBA, schools that fail to meet specified benchmarks will lose 
federal funding and be "abolished," thereby putting teachers out of work. Counsel offers no specific 
example of this situation ever happening. As previously discussed, the unsupported assertions of 
counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of 
Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Counsel also 
asserted that by waiving the labor certification requirement for highly qualified special educators 
such as the petitioner, "more American teachers will have employment opportunities" because 
standards will be met and schools will not be abolished. However, neither the Immigration and 
Nationality Act nor the NCLBA, separately or in combination, create or imply any blanket waiver 
for highly qualified foreign teachers. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
present petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate record. See 8 C.P.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.P.R. § 103.2(b)(16)(ii). 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
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.P.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 February 13, 2013. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director stated that the petitioner failed to demonstrate that her work "will benefit 
the U.S. on a national level, or that it has otherwise had some influence on the field as a whole." 
On appeal, counsel asserts that "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" NYSDOT. With regard to following the guidelines set forth in 
NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 8 C.P.R. 
§ 103.3(c). 
Counsel asserts that section 203(b)(2)(B)(i) of the Act does not contain clear guidance on eligibility 
for the waiver, and claims that Congress subsequently filled that gap with the passage of the 
NCLBA. Counsel states that "Congress has spelled out the national interest with respect to public 
elementary and secondary school education through the No Child Left Behind Act of 2001." 
Counsel, however, identifies no specific legislative or regulatory provisions that exempt foreign 
school teachers from NYSDOT or reduce its impact on them. It is within Congress's power to 
establish a blanket waiver for teachers, "highly qualified" or otherwise, but contrary to counsel's 
assertions, that waiver does not exist. 
Counsel did not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b )(2) of the Act. Once again, the unsupported assertions of 
counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of 
Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. In contrast, section 
S of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (November 12, 1999), 
specifically amended 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 shown that the NCLBA indirectly implies a similar legislative change. 
Counsel asserts that the benefit arising from the petitioner's work is national in scope because of the 
"national priority goal of closing the achievement gap." The record, however, contains no evidence 
that the petitioner's efforts have significantly closed that gap. The national importance of 
"education" as a concept, or "educators" as a class, does not establish that the work of one teacher 
produces benefits that are national in scope. See NYSDOT at217, n.3. A local-scale contribution to 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
an overall national effort does not meet the NYSDOT threshold. The aggregate national effect from 
thousands of teachers does not give national scope to the work of each individual teacher. 
Counsel continues: 
The national priority goal of closing the achievement gaps between minority and nonminority 
students, and between disadvantaged and more advantaged children is especially relevant in 
the context of and The 2012 MSA [Maryland School 
Assessment] Reading results show that out of the 24 Maryland school districts 
ranked near the bottom at the 'All Student' level for each MSA-covered grade level .... 
The petitioner worked for from 2005- 2012, and thus had been there for a number of years 
before the administration of the 2012 MSA tests. Counsel fails to explain how the 2012 MSA results 
for (which indicate low rankings relative to other Maryland school districts) establish that 
the petitioner has played an effective role in "closing the achievement gap." 
Counsel states that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but he cited no documentary evidence to 
support that claim. As previously discussed, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 
n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Regardless, there is no documentation 
demonstrating that the petitioner has had an impact or influence in raising student proficiency in STEM 
outside of Skyline Elementary School. 
Counsel asserts that the "director erred in his appreciation of petitioner's past achievement," but 
counsel fails to point to specific evidence in the record showing that the petitioner's work has had a 
national impact or has otherwise influenced the field as a whole. 
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers and that USCIS "should have 
presented its own comparable worker." 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, however, is that the 
petitioner must establish a record of influence on the field as a whole. Moreover, there is no 
provision in the statute, regulations, or NYSDOT requiring the director to specifically identify 
another equally qualified special educator. 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Counsel asserts that USCIS "is requiring more from the beneficiary's credentials and tantamount to 
having exceptional ability," even though one need not qualify as an alien of exceptional ability in 
order to receive the waiver. As previously discussed, the requirements for exceptional ability are 
separate from the threshold for the national interest waiver. It remains that the petitioner's evidence 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
does not facially establish eligibility for the national interest waiver. The director did not require the 
petitioner to establish exceptional ability in her field. Instead, the director observed that the 
petitioner's evidence does not show that the petitioner's work has had an influence beyond her 
classroom or the school system that employed her. 
Counsel cites to several studies pointing to high turnover rates and inexperience among special 
education teachers. A shortage of qualified workers in a given field is an issue that falls under the 
jurisdiction of the Department of Labor through the alien employment certification process. 
NYSDOT at 221. This information shows that there is a demand for credentialed special education 
teachers, a demand that the labor certification process can and, in this instance, did address. 
Counsel again argues that the labor certification guidelines "require only a bachelor's degree," and 
therefore "may not meet the objective of employers to hire highly qualified teachers pursuant to No 
Child Left Behind." On page 12 of the appellate brief, however , counsel acknowledges that the 
statutory definition of a "highly qualified" teacher requires only a bachelor 's degree. 
Counsel asserts that a waiver would ultimately serve the interests of United States teachers, because 
if schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Law," 
the result would be "not only ... closure of these schools but [also] loss of work for those working 
in those schools." Again, counsel does not document "closure of ... schools" for failing to meet 
NCLBA requirements , and the 
record does not show that the petitioner 's work has brought 
schools closer to meeting the NCLBA requirements. 
Much of the appellate brief consists of general statements about educational reform and discussion 
of perceived flaws in the labor certification process. The petitioner, however, has not established 
that Congress intended the national interest waiver to serve as a blanket waiver for special education 
teachers. USCIS grants national interest waivers on a case-by-case basis, rather than establishing 
blanket waivers for entire fields of specialization. !d. at 217. 
It is evident from a plain reading of the statute 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. 
The petitioner has not established that her past record of achievement is at a level that would justify 
a waiver of the job offer requirement which, by law, normally attach~s to the visa classification 
sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. !d. at 
217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole."). 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. 
(b)(6)
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Page 19 
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 of Otiende at 128. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.