dismissed EB-2 NIW Case: Special Education

(b)(6)
~. PATE: DEC 0 5 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services · 
FILE: 
PETITION: Immigrant Petition for Alien Wor~er as a Member of the Professions HoldiQg 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:Uwww.uscis.gov/fotms for the latest infonnation OIJ 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, 
)«9n Rosen 
Chief, Administrative Appeals Office 
-www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Ditectpr, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. tlie AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of th~ lrtuhigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with post-baccalaureate experience 
equivalent to an ~dvanced degree. The petitioner seeks employment as a special education math 
teacher. 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 has 
not established that she qualifies for classification as a member of the professions holding an advanced 
degree, or that an exemption from the requirement of a job offer would be in the national interest 
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 9f 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigr(lnts 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 
ate 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 req11irements of subp(lfagraph (A) that an alien's 
serviceS in the sciences, arts, professioJ1S; Of business be sought by an emplo)'{!r 
in the United States. 
Advanced Degree or Equivalent 
The first issue concerns the beneficiary's academic degree or degrees. The U.S •. Citiz¢nsb.ip and 
lrtuhigtatioh Services (USCIS) regulation at 8 C.P.R. § 204.5(k)(3)(i) states that, to show that the 
alien is a professional holding an advanced degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
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NON-PRECEDENT DECISION 
letters fro,r.n current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
) 
The petitioner cioes not claim to bold an advanced degree. Instead, the petitioner claims a bachelor's 
degree in psychology from in the Philippines; credit toward a master's 
degree from four different institutions in the Philippines and in the United States; and employment 
experience at three cii(ferent schools from 1994 to 2011. 
T}J.e record establishes the petitioner's past employment experience. With respect to the underlying 
bach¢ior's degree, the petitioner submitted an evaluation from SpanTrart Educational Services, 
stating ' that the petitioner's 1993 degree from is equivalent to a U.S. 
baccalaureate degree. The petitioner submitted no transcript ()r other academic record from 
The petitioner submitted a transcript from the establishing that she took two 
semesters of courses there in 2010. The transcript does not establish, and the ' etitioper does not 
clai,r.n, that the petitioner earned a master's degree at the The transcript is 
not an official academic record of the petitioner's claimed bachelor's degree. 
The director ·issued a request for evidence (RFE) on July 16, 2012. The director stated: "Submit 
evidence to establish that the beneficiary has abachelor's degree from 
Submit a copy of the beneficiary's official. academic record, including transcripts." The d~rec~()r aJso 
req1.1ested evidence to support her application for the national interest waiver, dis.cussed elsewhere in 
this decision. The petitioner responded to the RFE, but the petitioner's exhibits · did not include the 
requested academiC record. The RFE response included a 16--page statement from counsel, but 
counsel did not explain the omission of the academiC record. Counsel did not a~<;I<:Jress or 
ack.nowleqge that element of the RFE. 
The director denied the petition on March 12, 2013, stating that "the requestecj. transcript was not 
submitted [In response to the RFEl. No ex lanation was given for the omission, 6f tb¢ tr~nscript. 
Since the transcript from was not submitted, the ev:idence · doe.s not 
deiiJ.Oilstrate thaHhe petitioner has a bachelor's degree." 
.On appeal, counsel devotes one paragraph of a 32-page brief to this issue, stating: 
, I . 
As evidence of her equivalent U.S. advanced degree, the petitioner submitted the 
Evaluation issued by Spantran Educational Services, Inc[.] granting her the 
Equiva1ent Bachelor of Science in Psychology from a regionally+accredited 
institution of higher education in the UnHecJ. · States. With her employment 
documentation on file, [the petitioner's] 5-yeat progressive experience has be~q 
established without di&pute. 
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The petitioner's employment "experience has been established without dispute," but the USCIS 
regulation at 8 C.P.R. § 204.5(k)(3)(i)(B) required the petitioner to submit an official academic 
record showing that the alien has a United States baccalaureate degree or a foreign equivalent 
degree. The petitioner did not submit this required evidence, either with the initial filing or in 
response to an RFE that specifically 
requested the necessary documentation. 
' ' .i 
Spa:nTran did not issue the petitioner's claimed bachelor's degree, and therefore SpanTran is not in a 
position to issue an official academic record of that degree. The SpanTran evaluation indicated that 
the documents reviewed for the evaluation consisted of eight semesters of transcripts and a copy of 
the petitioner's degree. The petitioner has not submitted those materials to USCIS. Under the_ 
USCIS regulation at 8 C.P.R. § 204.5(k)(3)(i)(B), the petitioner must submit "an official academic 
re¢ord._" A third-party evaluation, stating that such a record ex:ists, does not suffice in this regard. 
In response to a request for evidence, all requested materials must be submitted together at one time. 
Submission of only some of the requested evidence will be considered a request for a decision on the 
record. 8 C.F.R. § 103.2(b)(ll). Where an applicant or petitioner does not subrnit aU requested 
additional evidence, a decision shall be issued based on the record. Failure to submit requested 
evidence which precludes a material line of inquiry shall be grounds for denying the benefit request. 
8 CF.R. § 103._2(b )(l4). , 
The regulation at.8 C.P.R.§ 103.2(b)(2)(i) states, in part: 
The non-existence or other unavailability of required evidence creates a presumption 
of ineligibility. If a required document, such as a birth or marriage certificate, does 
not exist or cannot be obtained, an applicant or petitioner must demonstrate this and 
· submit secondary evidence, such as church or school records, pertinent to the facts at 
issue .... Secondary evidence must overcome the unavailability of primary evidence. 
Here, the petitioner has not demonstrated the unavailability of the required primary evidence. 
' . . . . - . -· - - . . j •• 
Therefore, USCIS will not accept the SpanTran evaluation as secondary evidence thCJ.t the'pehtioner 
holds the claimed bachelor's degree from ' 
The director correctly found that the petitioner had not submitted an official academic record of her 
claimed baccalaureate degree, as required under the regulation at 8 C.P.R. § 204.5(k)(3)(i)(B). This 
finding, by itself, warranted denial of the petition. The petitioner also failed to provide the required 
evidence in response to the RFE. This is an additional issue that precludes approval of the petition. 
$ee 8 C.F.R. § 103.2(b)(14). The petitioner has not overcome this issue on appeal, and the AAO will 
therefore dismiss the appeal. 
National Interest Waiver 
The second and final issue is whether the petitioner bas established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. The petitioner cannot qualify for 
(b)(6)
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Page 5 
the waiver without first providing evidence of the required advanced degree or its equivalent. 
Nevertheless, the director addressed the merits of the petitioner's waiver claim in the denial notice, and 
therefore the AAO will address that claim here. 
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 OIJ 11ationa1 interest by 
incre<l,sing tbe number and proportion of visas for immigrants who woUld benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlstCong., 1st Sess., 11 (1989). 
Sl!pplemelltary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now 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 bejudged on its own merits. 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 21T-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be. considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien Will setve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum q\la}ifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies p~ojections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the ~lien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to req\lire fut1.ue 
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. ld. 
The USCIS regulation at 8 C.F.R. § .2045(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. 
(b)(6)
) 
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Page6 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on January 18, 2012. On 
th.at form, the petitioner stated that she intended to work in Baltimore, but she claimed no past 
experienee teaching there ; and the record contains p._o other indication of that intention. The 
petitioner's only U.S. emplo er since lier2004 entry into the United States has been 
approximately 4.5· miles south-southwest of is in -
Part 4, line 6 of Form I-140 asked: ''Has any i~igrant visa petition ever been filed by or on bebal(: 
'Of this person?" The petitioner answered "No.'' This ~swer is not correct. 
filed a For:ril I-140 petition on her behalf on Augttst 5, 2008, seeking to 
clas~ify her as a professional under section 203(b)(3)(A)(ii) of the Act. The petitioninchJded an 
approved labor certificatiq_n. The director approv~d the petition on ianuary 29, 2009;with a priority 
date of December 18, 2007. 
In an introdl!ctmy St(ltement su,bmitted with the petition, counsel· stated: 
[The petitioner's] petition for waiver of the labor certification is premised on her 
bAchelor's degree plt1s at least five · (5) years experience, the recognitions and 
achievements earned -through her diligep.t efforts, and authorship at the 
website, which was a grant obtained from the Maryland State Department of . -
Education. 
It is interesting to note that the performance evaluations about [the petitioner] have 
always been consistent with the highest Rating of 'Satisfactory.' In fact, [the 
petitioner] is instrumental in raising dramatically the scores \ and profi_ciency of her 
students .during critical years in the Maryland State Assessment Test. 
Because bf her accomplishments, [the petitio_ner 1 is admi_tted to be among the select 
and honored members of the prestigious ' [sic] since 
October, 2009. 
Aside froiD helping her school, _ improvement in th~ 
students' performance at the Maryland State Assessment Test, [the petitioner] earned 
the distinction of conducting the which was 
sponsored and hosted by 
- ' 
Academic degrees, experience, and recognition for achievements a.re. all elements of an exceptional 
ability claim under the regul_ations at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B), and (F), respectively. 
Because the threshold for exceptional ability is lower t.han the threshold for the national interest 
waiver, evidence of exceptional ability does not necessarily establish eligibility for the waiver. 
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With respect to the petitioner's ''recognitions and achievements," counsel listed 19 "awards and 
recognitions." Six of these exhibits concern specific elements that counsel singled out above, 
discussion of which will follow. The .remaining exhibits are certificates . acknowledging the 
· petition~r's pa,rt.icipation in various progress, or expressing general appreciation . .The petitioner did 
not establish the significance of these certificates outside of 
Printouts from the UDL pages on web site, mentioned by counsel above, listed the 
·petitioner as one of elev~n members of the "Multidisciplinary Team of Developers." The printouts 
identified the petitioner as . the author of two i]}structional units: a language arts unit called 
' and a science uilit called ' 
With regard to the petitioner receiving "the highest ~ting of 'Satisfactory,"' documents in 
the record show that there are only two possible overall ratings: "Satisfactory" and. "Uns~tjsfactory." 
(Individ~al rating elements offer an intermediate third rating, "Needs to Improve.") Under this 
rating regimen, the petitioner's "Satisfactory" ratings do not appea.r to distinguish her from others 
· qualified to teach at 
The petitioner submitted graphs showing her swdents' performance on the Maryland School 
Assessment tests, accompanied by a "Certificate of Achievement" that the petitioner received from 
OHES's principal "at the Maryland School Assessment Staff Meeting'' on February 16, 2007, "In 
Recognition of Distinguished Achievement in Dedication, Commitment and Perseverance During a 
CriticaJ Year Of School Improvement for Raising Student Achievement." The available evidence 
shows improvement in the performance of the petitioner's students, but provides no b€l..sis for 
compc,tdson with other teachers at OHES, or more broadly. Improvement in student 
perforrilance at the local level 
does not meet the NYSDOT national interest guidelines. 
A certificate dated October 5, 2009 .recognized the petitioner "as an Honored Member" who "hc,lS 
qualified for inClusion in the 2009-2010 edition of the Registry of 
Exe.cutives, Professionals and Entrepreneurs." Counsel described this membership as "prestigious" 
but the petitioner submitted no evidence to establish this claimed prestige; or to eStabJis.h the specific 
requirements for inclusion in the registry. Theunsupported assertions of counsel do not constitute 
evidence. See Matter of Ob.aigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano; 
19 I&N Dec. 1, 3 11.2 (BIA ·1983); Matter of R_amire~-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Without further information, the record does not justify the assertion that the petitioner's inclusion in 
the registry is a reflection of her standing irt the field. Ber six-digit 
"Member ID" number is consistent with 
a large, rather than exclusive, membership. 
Reg€l.fding counsel's assertion that the petitioner "conduct[ed] the from 
2006," the petitioner's own resume indicated that the petitioner coordinated ' , from 2006 
to 2008. A biographical sketch of the petitioner, written in the third person but which counsel 
attributed to the petitioner, stated: 
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For two years, [the petitioner] was the of her school whose 
responsibility was to teach Black History to mostly Mrican American students. This 
became a club for students who are willing to study more of the Black History and to 
compete within the school and inter-school. She trained [a] group of students to 
compete with other students in how much they know their Mrican American History. 
She organized a quiz bee type of competition to entice and motivate students to study 
and learn more about Black History and famous people. She was able to bring 
students to all Maryland School competition . about this which gained a lot of 
experience notonly for the students but forthe parents as well. 
Certificates in the record indicate that the is "sponsored & hosted by 
" The same· certificates acknowledged the 
' -
petitioner's "effort in conducting the _ _ ~ ' in 
2006 and Z007. Photographs show the petitioner and some students at a table marked ' 
The record contains 
no other information about the competition. 
Letters from OHES administrators, faculty, and a classroom· aide (who was also the parent of a 
student) attested to the petitioner's skill, dedication, and achievements at OHES. officials 
) 
attested to the petitioner's activities that affected the entire district. 
matbematics instructional specialist/special education for . stated: 
[The petitioner] has worked as one of the head curriculum writers for the Department 
of Mathematics in the Division of Curriculum and Instructions for 
[sic] since July of 2006. During this period she has provided 
a full range of professional development and curriculum writing services to 
strengthen implementation of the mathematics program for students with disabilities. 
[The petitioner] is a resourceful, creative, and knowledgeable educator who has been 
a major contributor to the Ma,tbematics Department's initiatives to improve 
achievement in mathematics for students with disabilities. She was the head writer in . .. . --· .. '...... . . . ..... '-- --- ..... . \ 
developing modifications [sic] lessons for the math curriculUm in grades K-5. Also, 
she was head curriculum writer for developing curriculum for out Community 
Reference Instruction Programs which supports students with significant cognitive 
disabilities, ages 5-21. ... 
In addition, she has assisted the Mathematics Department during the summer months 
in Teacher Leadership and Professional Development in preparing new special 
educators with strategies to meet the diverse needs of learners in the teaching of 
mathematics. 
talent development specialist at was a coordinator for the Professional 
Educator Induction Program (PEIP), which held "sessions that helped new teachers become better 
acclimated to and prepared for the start of the new schoolyear.''. She stated: "From 2007 to 
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Page 9 
2010, [the petitioner] served as a facilitator for the PEIP fifth grade instructional sessions ..•. The 
Professional Educator Induction Program has consistently benefited from her contributions through 
the years." · 
elementary instructional specialist for stated: "As a currlculurh a:nd 
(:tSSessment writer' [the petitioner's] abilities . cue unprecedented. . . . Addftionall y' [the petitioner] 
participated as a corfiinittee member on the county's Textbook ReviewCor:nmittee in the 
adoptjon of 
Grade 5 textbook.'' · 
The letters in the record contain strong praise for the petitioner's abilities and achievements, but no 
indication that the petitioner's work has had an impact outside of Some witnesses stated 
that the petitioner had raised the test scores of her students, but there (is no evidence that the 
petitioner's work has resulted in comparable improvement outside her own classroom. 
1 
Some of the letter~ refer to the Department of Labor's debarment of for willful violations 
under section 212(n)(2)(C)(ii) of the Act, which prohibits the approval of a,ny employment-based 
immigrant or nonimmigrant petitions filed by between March 16, 2012 and Marchn5, 2014. 
· OHES teacber for in_stance, stated: 
I am so disheartened that the students of have 
to suffer acaden1ically because of a hl,llJ}CI..Q resmuces error and mistake ... ~ It is not 
only a shame but an embarrassment to the United States Government as well a.s 
that those individuals who were wronged 
fine~.Qcially due to a human resources error are now wronged by having their lives 
ruined. The ruling did not only affect those international teachers whose visas were 
expiring but it hurt their colleagues, students, patents and local communities. 
By statute; the threshold for the waiver is benefit ·to the national interest, not a particular employer's 
inability to petition for a given worker. The inapplicability or unavailability of a tabor certification 
cannot . be viewed as sufficient cause for a national interest waiver; the petitioner still must 
demonstrate that the self-employed alien will serve the national interest to a substanti<dly gt~ater 
degree tban do others in the same field. NYSDOT at 218 n.5; Furthermore, the debarment does not 
affect the status of prior petitions approved before the debarment period, such as the petition that 
filed on the petitioner's behalf in 2008, approved in 2009. 
In the July 2012 RFE_, the director stated: "Tb,e petitioner must establish that the beneficiary has a 
past record of specific prior achievement withsom:e degree of influence 01;1 the field as a whole. The 
beneficiary's previous influence on the field as a whole must justify projections of future benefit to 
the national interest." The director also required the petitioner to establish that the benefit from her 
work would be !lational in scope. With respect to awards, the director stated that the petit_ioQer must 
submit evidence to establjsh their significance. 
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Page 10 
In response, counsel stated that the petitioner's "profession as 'Highly Qualified Math Teacher' is 
national in scope and has national-level benefits i.n improving STEM [science, technology, 
engineering and mathematics] Education." Evidence sub~itted in support ofthis assertion indicated 
tha:t there is a n~tional crisis in STEM education, but not that any one individual teaehet produced 
national-level benefits toward solving the stated problem. The impact, instead, is collective, which 
counsel essentially acknowledged with statements such as: "there is a lot of work to be done by 
'Highly Qul:l.lified' Math teachers like [the petitioner]." 
I 
In response, counsel stated: 
Since a 'National Mathematics Teacher' is not even a real concept but· more of 
metaphysical cognition [sic], undersigned wishes to once ag~in posit ~ realistic 
proposition upon which to establish that the self-petitioner's contributions will impart 
national-level benefits. 
Further, the curricula used by each state education qepartment in the United St~tes vary . 
from each other. 
Counsel's assertion that different jurisdictions use different 
curricula i_s not a factor in favor of granting 
the waiver. Instead, it serves to emphasize the local nature of the petitioner's impact, as stated in 
NYSDOT's discussion of th_e "national scope" prong of the national interest test: "while education is in 
the national interest, the impact of a single schoolteacher. in one elementary school wo~ld not be in the 
national interest for purposes of waiving the job offer requirement of section 203(b)(2)(B) ofthe Act." 
/d. at 217 n3. Inability to meet the "national scope'' prong of NYSDOT does not entitle the petitioner 
to a different standard. The waiver, by nature, is a limited benefit for which not every foreign worker 
- will qualify. 
Coliilsel stated: "it is but harmless to a.Ssert that if an NIW [national interest waiver] Petition is made 
with premise on some prevailing Acts of United States Congress, that by itself r~n.ders the proposed 
employment national In scope. But in those cases that are not premised oil any p_rev~ilit;tg Act of 
United States Congress, NIW self-petitioners must meet the issue on other base.s." Coi)Ilsel cited no 
supportfor tbis construction of the law. All employment-based immigrant classifications are based on 
"prevailing Acts of United States Congress," and so is the statutory job offer requirement. Congress 
could create a blanket waiver through new legislation, and has done so in the past. Section 5 of the 
Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 Stat. 1312 (Nov. 12, 1999), 
specifica_lly amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to that 
Act, to create special waiver provisions for certain physicians. Thus, Congress not only can amend the 
Act to clarify the waiver provisions, but has in fact done so in direct response to NYSDOT. Congress, 
to date, has not taken similar action with respect to teachers. 
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 prov1d~s for vital increases for entry 
on the basis of skills, infusing the ranks of our scientistS and engineers and educators with new blood 
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Page 11 
and new ideas." Counsel interpreted this passage to mean that Congress created the national interest 
waiver for educators. President Bush, however, did not mention the national interest waiver in his 
remarks; he was discussing the Immigration Act of 1990 as a whole, which included provisions that 
subject m~mbers of the professions (including "scientists and engineers and educators") to the job 
offer requirement. 
Counsel quoted President Obama: "I'm committed to moving our country to the middle to the top of 
·the pack in science and math education over the next decade." Counsel contended that the president 
has thus "effectively set the critical timeline within which to meet [this] goal. : .. the Chief 
Executive of the country has himself determined that the national interest would not be served if the 
petitioner was required to obtain a labor certificate [sic] for the proposed employment." Counsel did 
not establish that granting the waiver to the petitioner would make a difference in meeting "the 
critical timeline." While the president's 
remarks represent one of the current administration's policy 
goC!.lS, those words do not supersede standing legislation, regulations and case law. 
Citing the petitioner's "ovet fifteen (15) years of dedicated service/' counsel stated that approving the 
waiver "is certainly economically wholesome to the American nation instead of waiting for about 30 
years until U.S. workers become as highly qualified as she is;" Counsel did not explain why U.S. 
workers would requite "about 30 years" to reach the level of qualification that the petitioner attained in 
half that time. Also, this assertion prestimes that. there are no experienced teachers in the petitioner's 
'
specialty in the United States, and therefore it would take decades before any U.S. t~acher reaches the 
level of experience that the petitioner has already attained. 
Counsel acknowledged tqat the job offer/labor certification requirement exists to protect United 
States· worke.rs, but contended that a waiver o( that requirement would serve the same ultimate goal, 
by allowing the petitioner to train "today's students [who] need to be academically competitive to 
gt~arantee their employability." Counsel further stated: ''today's Unit~d States workers or 
Mathematics Teachers are not as competitive as the foreign teachers who ate a.Iteady in th~ country 
since not all of them wete educated by 'Highly Qualified Teachers."' This assertion relies on the 
presumption that ail "foreign teachers" "were educated by Highly Qualified Teachers.'' Counsel 
cited no evidence to support that claim, and counsel's claims are not evidence: See Matter of 
Obaigbena at 534 n.2, citing Matter of Ramirez-Sanchez at 506. 
Counsel asserted "that retaining is more cost effective than recruiting new clients [sic]," and therefore 
. ''the most practicable approach" is to allow U.S. employers to continue to employ foreign Workers 
whom they have already hired, rather than replace them With new U.S. wo~kers who require additional 
· training. The standard for the waiver of the job offer requirement is the national interest, not what 
might be most efficient ot cost-effective for individual empioyers. Counsel's proposed Standard wo~ld 
· effectively create a blanket waiver for all foreign workers currently employed in nonimmigrant status~ 
Furthermore, many of counsel's assertions rest on the assumption that the l(lbor certification process 
would displace the petitioner with a U.S. worker. Counsel did not establish that sufficient U.S. 
workers seek employment as teachers with to meet all of that district's recruiting needs. Also, 
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Page12 
this line of reasoning disregards the previously approved petition and labor certification. This approval 
outweighs any Speculation about factors that might have prevented the approval. 
The petitioner submitted a copy of the Common Core State Standards Curriculum Framework 
Progress Guide for Elementary Mathematics, Grade 1. The petitioner was one of 19 
employees who made unspecified contributions to the. guide. As counsel acknowledged, each 
jurisd_ict.ion formulates its own curricula. The petitioner did not establish that other districts have .used 
or adapted her work, and therefore the guide does not establish national scope, 
In the March 2013 denial notice, the director stated that the petitioner had met only the "intrinsic 
merit" prong of the NYSDOT national interest test, and had not shown that the benefit from her work 
(as opposed to from the collective effort of all teachers) would be national in scope, or that the 
petitioner had influenced her field as a whole. 
On appeal, counsel questions "the applicability of the 'Matter of New York St~te Dept. of 
Transportation['] to the NIW petitions by 'Highly Qualified Teachers.''' As a published precedent 
decision, NYSDOT is binding on all USCIS employees in the administration of the Act. See 8 CF.R. 
§ 103.3(c). 
Counsel observes that section 203(b)(2)(A) of the Act refers to "the national ... educational interests 
. 
. . of the United States," but the same sentence .. in the statute indicates that professionals are 
generally subject to the job offer req1,1irement. Congress also specified that school te~cbers are 
professionals, at section 101(a)(32) of the Act. Therefore, Congress specifically indiqated that 
school teachers must meet the job offer requirement, even when they will "substantially benefit 
prospectively the national ... educational interests ... of the United States." · 
Counsel contends that, because NYSDOT lacks a clear definition of the term ''national interest," it 
should apply only in instances where Congress has not provided such a defjni~ion. Counsel also 
daims that, in the case of public school teachers, Congress has provided such a definition by passing 
the No Child Left Behind Act of 2001 (NCLBA), Pub.L. 107-110, i15 Stat. 1425 (Jan, 8, 2002). 
The NCLBA proposed to reform the public school system through the employment of "highly 
qualified teachers." Counsel claims: 
the NCLBA and the Obama Education Programs, taken collectively, provide t.be 
underlying context for the adjudication of a national interest waiver application made 
in co11junction with an E21 visa petition for employment as a Highly Qualified 
Teacher in the public school sector. ... 
[A] straight-jacket [sic] application of NYSDOT constricts, instead of promoting, the 
national educational interests. In effect, therefore, the United States Congress, with 
the enactment of the NCLB Act, has preempted the USCJS with respect to the 
parameters that should guide its determination wh~ther a waiver of the job offer · 
requirement based on national educational interests is warranted .... 
(b)(6)
Page 13 
' 
NON-PRECEDENT DECISION 
The Matter of New York State Dept. of Transportation obviously is good in so far as 
NIW cases filed by Engineers are concerned but does not give justice to other 
professionals especially since the facts ate definitely distinct from each other, not to 
mention subsequent legislations intended to provide guiding principles to implement 
Immigration Act of 1990. 
Review of the text of the NCLBA does not support counsel's assertions regarding that statute. The 
NCLBA did not amend section 203(b )(2) of the Act, a,nd it contains no mention of foreign teachers 
or the phrases "national interest'.' or "national educational interests." The ~.ssertion, theref'ore, that 
Congress intended the NCLBA as a means to facilitate the immigration of "highly quC1.lified 
tea<;hers;'' or even to define the phrase ''national educational interests," is unsupported. Section 
203(b)(2)(A) of the Act continues to subject teachers, as members of the professions, to the job offer 
requirement, and counsel has cited no specific statute, regulation, or case law that amends or 
supersedes that existing statute. 
With respect to "subsequent legislations intended to provide guiding principles to implement 
Immigration Act of 1990," the Miscellaneous and Technical Immigration and Naturalization 
Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 (Dec. 12, 1991) made the national interest 
waiver available to members of the professions holding advanced degrees, wbere previously it was 
available only to aliens of exceptional ability. Following the 1998 publication of NYSDOT , section 5 
of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub.L. 106-95, 113 Stat. 1312 (Nov. 12, 
1999), specifically amended the Immigration and Nationality Act by adding sectior1 203(b)(2)(B)(ii) 
to that Act, to create special waiver provisions for certain physicians. These statutes "provide 
.guiding principles" ~th respect to the national interest waiver. Counsel has identified no other 
legislation that directly addresses the national interest waiver in this way. In the absence of a 
comparable provision in the NCLBA or any other education-related legislation, there is no basis t() 
conClude that the legislation indirectly implied a blanket waiver for teachers. 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of 
Public Welfare v. Davenport, 495 U.S. 552 (1990). Where the language ofa statute isclear on its 
face, there is no need to inquire into Congressional intent. INS v. Phinpathya, 464 U.S. 183 (l984). 
The statlltory laQguage of section 203(b )(2)(A) of the Act subjects professionals, including teachers, 
to the job offer requirement Congres,s later amended the Act to create a special provision for 
physicians, but has not yet done the same for teachers. 
Counsel states that the director's "decision did not present even one comparative candidate having at 
least the equivalent accomplishment as that of [the petitioner] to support its determination .. " The 
burden-of proof rests on the petitioner, not the director. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). There is no presumption of eligibility, and 
there is no requirement that the director must identify and produce a "comparative candidate'' whose 
qualifications equal or surpass those of the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Counsel claims that NYSDOT ''requires overly burdensome evidence on the qualification (~ic] of the 
self-petitioQ.er, identical to 
EB-1 extraordinary requirements.'' Counsel, here, refers to the 
"extraordinary ability" classification at section 203(b)(1)(A) of the Act. That classification requites 
"sustained national or international acclaim," an& the implementing regulations at 8 C.F.R. 
§ 2Q4.5(h)(3) require a petitioner to meet at leaSt three of ten specified standards. The regulatory 
definition of_ "extraordinar~ ability" at 8 C.F.R. § 204.5(h)(2) requires a demonstration that the 
benefiCiary "is one ofthatsmall percentage who have risen to the very top of the field of endeavor." 
The director did not apply that standard to this petition. To say that one has. had significant impact 
on orie'·s field is not the same a~ saying that one has reached the very top of that field, ot has earned 
sustained national or international acclaim in that field. NYSDOT stands as binding precedent and 
the director did not err by relying on that decision. 
Counsel stated that. the ~irector, in the request for evidence, 
require<i v~gue and overly burdensome evidence more fitting to the cause of .an 
\ , Engineer. USCIS is expected to stipulate clear basis for evidences requested and at 
least meritoriously rebut the evidences submitted in the initial filing and in the 
response to Request for Evidence. 1-!ere, the Director failed to explain why NCLJ.3 
was undermined when the law provides the · standards to achieve the national 
educational interest. Unlike in the Matter of New York State Dept. of Transportation, l 
United States Congress legislated NCLB to serve as guidance to USCIS in gr~nting 
legal residence to 'Highly Quali.fied Teachers.' 
The relevant points in NYSDOT are not specific to engineers. Counsel's cJ~im that US CIS must 
"rebut" the petitioner's previously submitted evidence implies that the petitioner's evid~mce 
. established an initial presumption of eligibility that does not actuatly exist. CounSel asserteq that 
"the director failed to explain why NCLB was undetrnined," . but' col.lllsel iqentifies no specific 
legi_sl~tive or regulatory provisions that exempt school teachers fto:ril NYSDOT or reduce its· i.mp~:tct 
on them. In stating "Congress legisl~ted NCLB to serve as guidance to USCIS,'' courtsel claims 
knowledge of Congressional intent, but cites no source for this knowledge; the statute itself offers no 
support for courtsel' s claim. 
Cot.tnsel states: "The standard in other words is not national geography but national intell~ction 
directed to recapture the nation's economic dominance. This is ·what is called 'Bridging the Gap.' 
SyllogisticaJly, hiring 'Highly Qualified Teachers' would produce more graduates than dropouts." 
The exist(:!nce of federal education policy does not give national impact to the efforts. of one 
·schoolteacher, and the petitioner has not established that the hiring of one "High~y Qualified 
Teacher" increases graduation rates. .Going on record Without supporting documentary evidence is 
not sufficient fot purposes of meeting the burden of proof in these proceedings. Matter ofSoffi.ci, 22 
I&N bee. 158, 165 (Comm'r 1998) (citing Matter ofTteasure Craft ofCaliforniq, 14 I&N bec.190 
(Reg'l Comr.n'r 1972)). Counsel cites various Department of Education publications com::erni.ng the 
goals of the NCLBA and . other federal programs, but no evidence ciocumendng the results of those 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
programs a d<!<;ade afterthe NCLBA's enactment. Instead, counsel cites recent statistics regarding 
poor Student performance .by students i11 , Maryland, several years after th~ 
passage of the NCLBA and several yeats after the petitioner be~ working for Eligibility 
for the. w:ii~er rests on the merits of the individual seeking the waiver, and the reco.rd does not show 
that th<! petitioner has had or wi11 have a nationally significant inipact on graduation rates. Being a 
''Highly Qualified Teacher" under the NCLBA qoes not ~stablish or imply eligibility for the national 
· interest waiver. 
Counsel states: 
USCIS'" Texas Service Center has not specified what it meant by 'any contributions of 
unusual significance that would warrant · a natio11al }pterest waiver.' There is no 
clarity on this particular requirement and yet, the Director has easily dismissed the 
incomparable accomplishments of (the petitioner] as submitted in her [sic] .Case File. 
By requiting the petitioner to submit 'evidence of ambiguous nature is 'unduly 
burdensome' and in effect tantamolll1t to requiring 'impossible evidence' for being 
extremely subjective·. ' · · 
The lack of clear standard on ·this particular requirement leaves the finding of 
insufficiency by USCIS ~ Texas Service Center highly speculative, without faC:tual 
basis and rather drawn in thin air. 
Tlw mandate for 'flexibility in tlie adjudication ofNIW cases' ... must be construed 
liberally rather than strictly compared to the New York State Department 'of 
Transporta:tion case. USCIS is now required by. United States Congress through the 
No Child Left Bellind Act of2001 ... to make it "flexible["] and thus possible rather 
than impossible in favor of the 'Best Interest of the School Children,' by granting 
waivers to 'Highly Qmi.lified Teachers' whohave already been serving the ,cm.J,~e 
instead of requiring labor certification which may only reveal uncommitted U.S. 
workers with minimum education qualification. . 
The petitioner has not submitted evidence to establish that her acc~mplishments are "incomparable" 
a.s counsel claims. After suggesting that the director's decision is ''drawn in thin air,;7 counsel asserts 
th_at the NCLBA did not merely imply that USCIS should grant .the waiver to ''highly qualified 
teachers;'' it "required" USC IS to do so. Counsel cites no specific section of the NCLBA containing 
this claimed requirement. 
Counsel contends that factors such as ''the 'Privacy Act' protecting private individuals,.' make it 
"impossible" to compare the petitioner with other qualified workers, and asserts: "the USClS"'Te}(as 
Ser\ric~ Cent~r should have presented its own comparable worker; if there be any at all," as a basis 
for comparison against the petitioner. The NYSDOT guidelines are not an item...,by,item comp~fison 
of an alien's credentials with those of qualified United States workers. That decision indicated tliat 
(b)(6)
\ 
NON~PRECEDENT DECISION 
Page 16 
the petitioner must establish a record ofinfluence on the field a~<!. whole. !d. at 219, n.6. To do so 
does not require an invasive review or comparison of othet teachers' credentials. 
Counsel asserts that the petitioner "has submitt¢d overwhelming evidence" , of eligibility, and that 
"the Director is requiring more from the beneficiary's credentials tantamount to having exceptional 
ability," even though one need not qualify as an alien ofexceptional ability in order to re~eive t.he 
waiver. It is evident from the Statute that the tbresbol<i for exceptional ability is below, not above; 
the threshold for the national interest waiver~ it is possible to estaJJUsh exceptional ability but still not 
qualify for the waiver. Also, the director did not require the petitioner to establish ex<::eptional 
ability in her field. Instead, the director fol.lJld tbat the petitioner's evidence failed to establish that 
h~r work has had an 'influence beyond 'the school districts where shy has worked. 
CoUti.sel asserts that 59% of special ed.ucation teachers hold a master's degree ot its equivalent, and 
that 92% of them hold "full certification." Setting asid,e the illSufficient evidence of the petit!oner's 
·degree, these figures indicate that a majority of special education teachers bold credentials 
comparable ot superior to the petitioner's , ' 
COW1$el claimed that the labor certification process presents a "<iilefiltha" because 'The United 
States Department of Labor minimum education r~qulrement Report' for High School Teach,et is just 
a bachelor's degree,'' but "the employer is required by No Child Left Behind ... to employ highly 
qualified teachers.'' A bachelor's degree is the highest academic degree that the petition~r claims to 
hold, and successfully obtained a labor certification on her behalf; no dilemma is evident. 
Counsel claims: 
there is m_ore likelihood tban not as qictated by experience that replacing 'Highly 
Qualified Teachers' with those having only minimum qualification that these federally 
funded school~ would fail to nieet the high standard required under the No Child l,.eft 
Behind (NGL~) Law resultip.g qot only [in] closure of these schools but loss of work 
for those working in thos.e schools. · 
CQ1lllsel identifies no "federally funded school" that has closed as a result of f&iling to meet NCLBA 
standards. Attributing this claim to "experience'~ cannot suffice in this regard. Counsel's claim_s are 
not evidence. See Mat-ter of Obaigbena at 534 q.2, citing Matter ofRamirez-Sanchez at 506. Also, 
. counsel has not shown that awarding the waiver to the· petitioner would prevent school closures Oil a 
nation:~ly significant scale. The petitioner's approved labor certification and petition have already 
shown that the labor certification process did not result in the petitioner's replacement. 
Congress has established no· blanket waiver for teachers based · on the overall importcmce of ~ducation; 
eligibility for the waiver tests on the merits of the individual alien. The petitioner has not established a 
past record of achievement at a level that would justify a waiver of the job offer requirement. The 
petitioner need not demonstrate notoriety on the scale of national acclaim, but the nationa.,l interest 
waiver contemplates that her influence must be national in scope. NYSDO'T at ' 217, n.3. Mote 
(b)(6)
NON-PRECEDENT DECISION 
Page l7 
specifically, the petitioner "must clearly present a significant benefit to the field of eildeavpr." Jd, at 
218. See also id. at 219, rt.6 (the' alien mu,st have "a p~t hi~tory of demonstrable achievement with 
some degree of influence on the field as a whole."). 
A plain reading of the statute shows that not ev¢ry person qualified to engage in a profession in the 
United States should be exempt from the requirement of a job offer based on national interest. 
Likewise, it dQes not appear to have been the intent of Congress to grant national interest waivers on 
the baSis of the overall importance of a given profession, such as teaching, rather than on the merits of 
the individual alien. On the basis of the evidence submitted, the petitioner has not estabUs~~d that a 
waiver Qf the requirement of an approved labor certification will be in the national interest of the 
United States.' 
The AAO will dismiss the appeal for the above stated reasonS, with each considered as an independent 
and alternate basis for the d~cisi.on. In visa petition proceedings, it is the petitioner's butdert to 
establish eligibility for the immigration benefit sought · Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not rrtet tha.t burden. 
ORDER: The appeal is dismissed.