dismissed EB-2 NIW Case: Special Education

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Admin istrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: SEP 1 9 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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 establish 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, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO . 
Thank you, 
)JfJf)Adn~ 
(' Ron Rosenberg 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
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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 hnmigration 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 worked at in New 
Carrollton, Maryland from 2007-2011. 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 ofJob 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. 
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 
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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 (NYSDOT), 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.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally 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. 
The petitioner has established that his 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 he will benefit the national interest to a greater extent than an 
available U.S. worker with the same minimum qualifications. 
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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. !d. at 221. 
The petitioner filed the Form I-140 petition on January 25, 2012. In a January 24, 2012 letter 
accompanying the petition, counsel stated that the petitioner's national interest waiver is based on 
his equivalent Master's degree in special education, "the numerous recognitions received by him," 
and his "combined teaching experience of over six (6) years." Academic degrees, experience, and 
recognition such as awards are elements that can contribute toward a finding of exceptional ability. 
See 8 C.P.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 recognition 
and work as a special educator will be further discussed later in this decision . 
The petitioner submitted a January 19, 2012 letter discussing his education, teaching background, 
personal qualities, and job responsibilities. In his letter, the petitioner did not mention the NYSDOT 
guidelines or explain how he meets them. In addition, the petitioner did not indicate that his work as 
a teacher has had an impact beyond the schools where he has taught. With regard to the petitioner's 
special education work for there is no evidence establishing that the benefits of his work 
would extend beyond the school system such that they might have a national impact. NYSDOT, 22 
I&N Dec. 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 attorney 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 his 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 special education 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 the petitioner merits the special 
benefit of a national interest waiver, over and above the visa classification he 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. 
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The petitioner submitted various letters of support from administrators, teachers, and parents 
discussing his work as a special educator. The petitioner also submitted letters commenting on his 
graduate studies in the College of Education at the and his practice 
teaching assignment at As some of the letters contain redundant 
claims already 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. 
stated: Principal, .____ ______ _ 
I have been acquainted with [the petitioner] for about 5 years as his Principal and Supervisor 
at in [The petitioner] 
taught students with special needs in our school. He was a valuable part of our Instructional 
Team working with children with Autism and multiple-handicapping conditions. 
* * * 
He conducted regular formal and informal assessments in order to move his students towards 
achievement through effective programming. 
Since his assignment here at [the petitioner] demonstrated leadership by 
working as the Alternate Maryland State Assessment Coordinator. As Coordinator [the 
petitioner] developed and implemented grade level testing artifacts aligned with the 
Maryland State Curriculum that are appropriate for children with disabilities. He worked 
effectively with colleagues and assisted our students in achieving mastery in both IEP 
[Individualized Education Program] goals and ALT -MSA [Maryland School Assessment] 
mastery objectives. 
comments on the petitioner's responsibilities at but she does not 
indicate that the petitioner's work has had, or will continue to have, an impact beyond the students 
under his tutelage and the local school system that employed him. 
, Professional School Counselor, -------~'stated: 
[The petitioner] has been a teacher here at since August of 2007 .... [The 
petitioner] worked for his first three years with children whose ages make them 
approximately tenth and eleventh graders. His students all had a disability code of 
intellectual disability. Most that he worked with were also autistic. [The petitioner] provided 
the structure, routine and accommodations that each child in his class required. . . . He 
provided vocational training that would be invaluable for our students when they graduated 
and move on to adult programs. 
During the 2010/2011 academic year, [the petitioner] worked with much 
younger students. 
These students were in approximately grades three and four. They were also primarily 
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autistic and nonverbal. [The petitioner] brought wonderful ass1st1ve technology to his 
classroom! The students worked with a Smart Board and software to aid them in writing and 
word recognition. . . . [The petitioner] provided the structure and challenges these students 
needed to make progress. 
comments on the petitioner's actiVIties as a special education teacher at 
, but does not indicate how the petitioner's impact or influence as a 
special educator is national in scope. 
, Special Education Chair, , stated: 
I have known [the petitioner] for four years here in .... During his tenure at 
I have observed [the petitioner] having a positive influence on the students 
with severe and rofound disabilities. [The petitioner] served as Alt Msa coordinator for two 
years at . During his time as coordinator, our students showed a marked 
influence in all areas (reading, math, and science). This data was taken from overall student 
scores. 
[The petitioner] also worked with students in the vocational area. He was able to design job 
plans for these students that included the necessary supports to cause them to be hired or to 
be placed in appropriate vocational skills programs upon their graduation. 
discusses the petitioner's work as an educator and Alt-MSA coordinator at 
. but fails to provide specific examples of how the 
petitioner's work has influenced the field as a whole. 
, a parent whose child attended ---------------- stated: 
[The petitioner] has contributed a significant progress in my son's development. His 
expertise and result-oriented approach in teaching brought about learning of functional skills 
that I am very happy to see in my son. 
* * * 
As a parent, I am proud to say that [the petitioner] did an excellent job in taking care of my 
son at school, especially on days when he is not in a good mood. He understands that the 
[sic] Aaron had special needs that he knows how to address appropriately. He made his class 
periods interesting and engaging for his students. 
comments on the petitioner's effectiveness as a teacher, but 
do not set the petitioner apart from other competent and qualified teachers, 
petitioner's work has impacted the field beyond his students at 
observations 
or explain how the 
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Retired Professor of Curriculum Studies, College of Education, 
, stated: 
[The petitioner] was my student in two courses in the graduate program at the College of 
Education, Strategies to Develop Critical and Creative 
Thinking and Principles of Elementary and Secondary Education, where he both got high 
marks, as can be seen in his transcript of records. 
comments on training courses taken by the petitioner, but 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. As previously discussed, 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. !d. at 221. Moreover, academic performance, measured by such criteria as grade point 
average, is not a specific prior achievement that establishes the alien's ability to benefit the national 
interest. !d. at 219, n.6. 
. Master Teacher II, ...._ ___ .... , Philippines, stated: 
[The petitioner] has demonstrated proficiency in remediating a class of non-readers, now all 
classified as readers. He was able to manage very satisfactorily this last section of 40 
students with behavioral problems, who are now all promoted to the next grade level. He has 
extended valuable assistance to the class adviser in equipping the students with competencie s 
in Reading and Mathematics. 
[The petitioner] performed his practice teaching here at , 
a 
public school, as a requirement for his Practicum in the Teaching of Exceptional Children. 
He started this teaching from August 2005 until this February 2006. He was assigned in 
Section 10, Grade 3. He handled this class of students who are non-readers with learning 
disabilities and behavioral problems. 
comments on the petitioner's practice teaching assignment at 
and his effectiveness as an educator, but does not explain how the petitioner's work 
has influenced the field as a whole. 
The petitioner's references praise the petitioner's teaching abilities and personal character, but they 
did not demonstrate that the petitioner's work has had an impact or influence outside of the schools 
where he has worked. They did not address the NYSDOT guidelines which, as published precedent, 
are binding on all USCIS employees. See 8 C.P.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 workers generally do not produce benefits that are national in scope . NYSDOT at 217 n.3. 
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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." ld. 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. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expett 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. ld. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; USCIS 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"). 
The petitioner submitted the following: 
1. A Certificate of Recognition from the in honor of the 
petitioner's "participation in the Challenge Day at '· 
2. Academic transcripts; 
3. A Maryland Educator Certificate; 
4. A February 21, 2006 "Certification of Good Standing" from the Republic of the 
Philippines Professional Regulation Commission, Manila; 
5. Praxis Series test score reports for the petitioner; 
6. A Professional Teacher certificate from the Republic of the Philippines; 
7. Employment verifications; 
8. Confirmation of the petitioner's Maryland State Education Association membership; 
9. Verification of the petitioner's Educator' s Association 
membership; and 
10. A Certificate of Membership for the Maryland Chapter of the Association of Filipino 
Teachers of America. 
Academic records, experience, professional certifications, membership in professional associations , 
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), (E), 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 his field, but the petitioner has failed to demonstrate that the award he received (item 1) 
has more than local or institutional significance . There is no documentary evidence showing that 
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items 1 - 10 are indicative of the petitioner's influence on the field of special education at the 
national level. 
The petitioner submitted copies of his "satisfactory" teacher evaluations from In addition, 
the petitioner submitted data regarding performance targets and Alt-MSA test results for students at 
The petitioner, however, did not submit documentary evidence indicating 
that he 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 he has taught. 
The petitioner submitted certificates of participation, completion, and attendance for trammg 
courses, seminars, and workshops relating to his professional development. While taking courses 
and attending seminars and workshops 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 request for evidence, instructing the petitioner to submit evidence to establish 
that the benefits of his proposed employment would be national in scope and that his 
"accomplishments are substantially greater than others working in the field of special education." In 
addition, the director noted that the letters of support submitted by the petitioner failed to 
demonstrate that petitioner "has influenced the field of special education on a national basis." 
In response, the petitioner submitted information about the No Child Left Behind Act (NCLBA) 
printed from the online encyclopedia Wikipedia; President George H.W. Bush's "Remarks on 
Signing the Immigration Act of 1990"; information about Public Law 94-142; a copy the Supreme 
Court decision in Brown v. Board of Education, 347 U.S. 483 (1954); information about NCLBA 
grant distribution formulas posted at http://febp.newamerica.net, a statement by U.S. Secretary of 
Education Arne Duncan on the National Assessment of Educational Progress Reading and Math 
2011 Results; a report entitled "Special Education Teacher Retention and Attrition: A Critical 
Analysis of the Literature"; and a report entitled "SPeNSE: Study of Personnel Needs In Special 
Education." 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, 22 I&N Dec. at 217. While such arguments and information address the "substantial 
intrinsic merit" 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 also submitted a July 10, 2012 letter from 
work as the Alt-MSA Coordinator for l. 
discussing the petitioner's 
stated: 
As Alt-MSA coordinator, [the petitioner] developed and implemented grade level testing 
artifacts aligned with the Maryland State Curriculum and Federal Regulations. [The 
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petitioner] was able to utilize various technology applications in order to develop adapted 
assessments with appropriate visual supports. He worked effectively with colleagues and 
assisted our students in achieving mastery in both IEP goals and Alt-MSA mastery 
objectives. Maryland State Department of Education (aligned with federal law) the roles 
[sic] and responsibilities of the Alt-MSA School Test Coordinator. [The petitioner] has 
successfully accomplished these tasks. 
[The petitioner] will continue to work as a representative to MSDE [Maryland State 
Department of Education] for alternate assessments for our county. Regular MSDE meetings 
will be held with the state wide committee members, with information from federal 
regulations being share [sic] and developed. This group will participate in decisions m 
developing state wide assessment procedures, which could extend to national level. 
asserts that the petitioner's MSDE meeting group "will participate in decisions m 
developing state 
wide assessment procedures, which could extend to national level." 
comments on what could one day result from the petitioner's involvement with the MSDE meeting 
group rather than providing specific examples of how his past work has already influenced the field 
as a whole. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of lzummi, 22 I&N 
Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N 
Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." !d. at 176. There is no documentary evidence showing that any procedures or 
methodologies originated by the petitioner have already been implemented outside of Maryland, or 
that his work has otherwise influenced the special education field as a whole. 
In a July 17, 2012letter, counsel stated: 
Since a 'National Special Education Teacher' is not even a real concept but more of 
metaphysical cognition [sic], undersigned wishes to once again posit a realistic proposition 
upon which to establish that the self-petitioner's contributions will impart national-level 
benefits. 
Even authors of books, treatises and other academic materials on Special Education are not in 
any standing [sic] to claim that their contributions are national in scope since not all special 
education teachers can be said to utilize their works. 
Further, the curriculums used by each state education department in the United States vary 
from each other. 
In other words, since not all NIW cases are based on prevailing Acts of United States 
Congress, it is but harmless to assert that if an NIW Petition is made with premise on some 
prevailing Acts of United States Congress, that by itself renders the proposed employment 
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national in scope. But in those cases that are not premised on any prevailing Act of United 
States Congress, NIW self-petitioners must meet the issue on other bases. 
The director did not state that the petitioner had to show that he is "a 'National Special Education 
Teacher,"' or that "all special education teachers ... utilize [his] works." National scope is not the 
same as universal reliance on the petitioner's work. Moreover, 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 basis to conclude that Congress, by mentioning a given occupation in 
a particular piece of legislation, exempted aliens in that occupation from the job offer requirement. 
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 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 Occupational Outlook Handbook describing what the U.S. 
Department of Labor considers to be 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. 
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* * * 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
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 candidate s to begin teaching immediately , under the close supervision of an 
experienced teacher. 
In addition, counsel stated: 
The truth of the matter however, is that the employer is required by No Child Left Behind 
(NCLB) Law and all other pronouncements by both the Federal and State Governments to 
employ highly qualified teachers and would in all actualities require to continue the 
professional services of the likes of [the petitioner] to achieve no less than the best interest of 
the American students. 
Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." Briefly , by the 
statutory definition, a "Highly Qualified" elementary school teacher: 
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• 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. 
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." 
Counsel contends that the labor certification process "would not meet the objective of the employer 
to hire highly qualified teachers pursuant to No Child Left Behind" because the labor certification 
process requires only a bachelor's degree. Section 1114(b)(l)(C) of the NCLBA, 20 U.S.C. 
§ 6314(b)(l)(C) , dictates that "[a] schoolwide program shall include ... [i]nstruction by highly 
qualified teachers." The regulation at 34 C.P.R. § 200.56 defines the term "highly qualified 
teacher," and the regulation at 34 C.P.R. § 300.18 lists supplementary requirements for "highly 
qualified special education 
teachers." 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." 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 ." 
In addition, counsel did not discuss the regulations at 34 C.P.R. § 200.56 and § 300.18 or 
Maryland's state-specific requirements, or cite any evidence to show that the labor certification 
process does not permit the hiring of "highly qualified teachers." If, by law, a teacher must be 
"highly qualified," then a teacher who does not meet the applicable requirements is not "minimally 
qualified." Rather, that teacher is underqualified or unqualified. Counsel has not shown that the 
labor certification process has forced or any other Maryland jurisdiction to hire teachers who 
do not meet the requirements of "highly qualified teachers." Rather, because "highly qualified" is 
statutory standard for such teachers, that term appear s to be functionally equivalent to the term 
"minimally qualified" for purposes of labor certification. 
Counsel referenced to various statutes , policy initiatives, and Brown v. Board of Education, 347 U.S. 
483 (1954), all of which affirmed the value of education, but none of which exempted teachers from 
the job offer requirement at section 203(b)(2)(A) of the Act. The undeniable importance of 
education is not sufficient to establish the petitioner's eligibility for a national interest waiver. See 
NYSDOT at 220. Moreover , none of the provisions mentioned by counsel specifically established a 
blanket waiver for foreign special education teachers. 
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Following the issuance of NYSDOT in 1998, Congress has enacted only one statutory change in 
direct response to that precedent decision. Specifically, Congress added section 203(b)(2)(B)(ii) to 
the Act, creating special waiver provisions for certain physicians. Those provisions do not apply in 
this proceeding. Therefore, NYSDOT provides the controlling guidance in the present matter. 
Counsel did not show that the other statutory provisions he cited indirectly imply the petitioner's 
eligibility for the waiver, even though those provisions never mention the waiver directly. 
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. The unsupported assertions of counsel do 
not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
Counsel cited 
a study showing that special education teachers "shift careers" and move to general 
education, and therefore "[t]he protection afforded for U.S. workers enshrined in the labor certification 
process will not in any way be jeopardized by grant of waiver in favor of' the petitioner. In addition, 
counsel cited another study indicating the percentages of special educators who are fully certified 
who hold master's degrees. The classification sought, however, was not designed merely to alleviate 
skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment certification process. NYSDOT at 221. The 
statutory standard is that the waiver will serve the national interest, and counsel's observations do not 
address that standard. 
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.F.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.F.R. § 103.2(b)(16)(ii). 
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 January 24, 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's decision stated: "It is not sufficient to establish that one school or one 
school district will benefit from a beneficiary's actions." 
On appeal, counsel asserts that "USCIS erred in gtvmg insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 as the guiding principle 
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NON-PRECEDENT DECISION 
Page 15 
rather than the precedent case" NYSDOT. Counsel, however, does not point to any specific 
legislative or regulatory provisions in the NCLBA 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 yet exist. 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 again cites the NCLBA and other government initiatives to reform and improve public 
education. 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 notes that Congress passed the NCLBA three years after the issuance of 
NYSDOT as a precedent decision and that "Congress has spelled out the national interest with respect 
to public elementary and secondary school education" through such legislation . Counsel, however, 
identifies no specific legislative or regulatory provisions that exempt school teachers from NYSDOT 
or reduce its impact on them. 
Counsel also does 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 
5 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 further states: 
With respect to the E21 visa classification, INA§ 203(b)(2)(A) provides in relevant part that: 
"Visas shall be made available ... to qualified immigrants who are members of the professions 
holding advanced degrees or their equivalent or who because of their exceptional ability in the 
sciences, arts, or business, will substantially benefit prospectively the national . .. educational 
interests, . . . of the United States, and whose services in the sciences, arts, professions, or 
business are sought by an employer in the United States. 
Counsel, above, highlights the phrase "national ... educational interests," but the very same quoted 
passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are 
sought by an employer in the United States." Counsel has, thus, directly quoted the statute that 
supports the director's conclusion. By the plain language of the statute that counsel quotes on 
appeal, 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. 
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Page 16 
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 at 217, n.3. A local-scale contribution to 
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 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 2007 - 2011, 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 
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 users "should have 
presented its own comparable worker." NYSDOT guidelines do not require an item-by-item 
comparison of an alien's credentials with those of qualified United States workers. The key 
provision 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; MatterofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
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Counsel claims: "the Immigration Service 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 does not facially establish eligibility for the national interest waiver. The 
director did not require the petitioner to establish exceptional ability in his field. Instead, the director 
observed that the petitioner's evidence does not show that the petitioner's work has had an influence 
beyond the school district where he has worked. 
Counsel cites to several studies pointing to high turnover rates and inexperience among special 
education teachers. As previously discussed, 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. 
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 does 
not 
reconcile these contradictory claims. 
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." Counsel offers no specific example of this situation ever happening. As 
previously discussed, the unsupported assettions 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. Moreover, 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. ld. 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 his past record of achievement is at a level that would justify a 
waiver of the job offer requirement which, by law, normally attaches 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 his 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." 
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!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. 
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.