dismissed EB-2 NIW Case: Special Education

(b)(6)
DATE: JAN 2 9 2014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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, 
)Jbf}dYJU 
() 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, hnmigrant Petition for Alien Worker, the petitioner seeks employment as a 
Special Educator and Individualized Education Program (JEP) Chair. The petitioner has taught for 
since 2007. At the time of filing, the petitioner was 
working for .. ..._ ___ L_.J The petitioner 
asserts that an exemption from the requirement of a job offer, an thus ot a labor certmcation, is in the 
national interest of the United States. The director found that the petitioner qualifies for classification as 
a member of the professions holding an advanced degree, but that the petitioner has not established that 
an exemption from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The record reflects 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 ce1tification, 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 propOttion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 10lst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service 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, 22 I&N Dec. 215, 217-18 (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 she 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 she will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
her past record justifies projections of future benefit to the national interest. !d. at 219. The petitioner's 
subjective assurance that she will, in the future, serve the national interest cannot suffice to establish 
prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the petitioner, rather than to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
The petitioner has established that her work as an elementary school special education teacher is in 
an area of substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of 
the petitioner's work will be national in scope and whether she will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. !d. at 220. Moreover, it cannot 
suffice to state that the petitioner 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. 
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The petitioner filed the Form I-140 petition on June 12, 2012. In Part 4 of the Form I-140, the 
petitioner answered "no" to whether any immigrant visa petitions had previously been filed on her 
behalf. The record, however, reflects that filed a Form I-140 petition, with an approved 
labor certification, on her behalf on February 16, 2011, to classify her as a professional under section 
203(b)(3)(A)(ii) of the Act. The Texas Service Center denied the previous petition for abandonment 
on January 4, 2012. 
In a June 7, 2012 letter accompanying the petition, counsel stated that the petitioner's national 
interest waiver "is premised on her Master's Degree in Special Education, over twenty (20) years of 
dedicated and progressive teaching experience in Special Education, [and] the awards and 
recognitions received by her." Academic degrees, occupational experience, and recognition for 
achievements are elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), and (F), respectively. Exceptional ability, in tum, is not self-evident 
grounds for the waiver. See section 203(b)(2)(A) of the Act. The U.S. Citizenship and Immigration 
Services (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 individual 
seeks classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in her field of expertise. The national 
interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. 
In his letter accompanying the petition, counsel did not mention the NYSDOT guidelines or explain 
how the petitioner meets them. The record does not show how the petitioner's work will impact the 
field beyond With regard to the petitioner's teaching duties, there is no evidence 
establishing that the benefits of her work would extend beyond her elementary school students such 
that they will have a national impact. NYSDOT 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. 
/d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a 
special education teacher beyond the students at her school and, therefore, that her proposed benefits 
are national in scope. In addition, the record lacks specific examples of how the petitioner's work as a 
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special educator has influenced the field on a national level. At issue is whether this petitioner's 
contributions in the field are of such significance that she merits the special benefit of a national 
interest waiver, a benefit separate and distinct from the visa classification she seeks. A petitioner 
must demonstrate a past history of achievement with some degree of influence on the field as a 
whole. Id. at 219, n. 6. 
The petitioner submitted various letters of support from administrators, school staff, and parents 
discussing her work as an educator. As some of the letters contain similar claims addressed in other 
letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate 
the nature of the references' claims. 
·--·----------------------
· ~~ ~~~ stated: 
In my role as principal, I have had the opportunity to work with [the petitioner] for the past 4 
years. She is an extremely gifted educator who has contributed greatly to the development of 
the students and the organization of the special education program of . Her 
knowledge of special education law, sound reading instruction, and early childhood 
development has made her a valuable educator. 
[The petitioner] far exceeds my expectations as a quality educator. [The petitioner] is a 
participant in our -~-- _ · · ' ~ '"'m_' 
program. Through this program [the petitioner] is observed formally two times annually. In 
her surnmative observation for the 2010-2011 school year, she earned a rating of 
distinguished in 24 of 26 areas for: planning for effective instruction, executing effective 
instruction and professional responsibilities. [The petitioner] is passionate about her work 
and is able to articulate her ideas very effectively . She also is a patient and understanding 
person who constantly makes decisions based on the best interest of children. 
[The petitioner] is an active member of our learning community and offers many ideas and 
strategies for meeting the needs of our special education students. She participates in 
numerous professional development opportunities and pursues resources for increasing her 
teaching practice. She eagerly serves on numerous committees and is the chairperson for our 
special education committee. Additionally [the petitioner] mentors our new teachers in the 
area of special education. She is a self-starter and requires little supervision to produce 
excellent results. 
comments on the petitioner's knowledge as a special educator, her participation in the 
, distinguished summative observation rating, ability to articulate ideas, patience, 
understanding, participation in professional development, service as special education committee 
chairperson, mentorship of new teachers, and independence as an educator, but does not indicate 
how the petitioner's impact or influence as a special education teacher is national in scope. In 
addition, fails to provide specific examples of how the petitioner's work has influenced 
the field as a whole. 
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--------------~- ,stated: 
I have known [the petitioner] for the past two and a half years as her assistant principal. She 
is a special education resource teacher at our school where she provides services to over 35 
students. [The petitioner] also serves as the IEP ... chair for where 
she conducts IEP meetings for over 100 students with a disability. I have worked very 
closely with her and have witnessed first-hand tremendous professional growth and 
incredible dedication and commitment to her students and 
[The petitioner] always strives to make a difference in her students' lives and in the lives of 
her colleagues. Her mission to ensure that her students receive the best education she has to 
offer is demonstrated in her commitment and professionalism. She is a leader in the school 
and is always willing to assist her colleagues in lesson development, disability awareness, 
and meeting the needs of students with disabilities and students who do not have a disability 
but stmggle academically. In my opinion, [the petitioner] is the perfect model for a teacher 
in the elementary school setting. She is highly dedicated and possesses a gift of being able to 
make complex subjects understandable. She is a humble person who loves to share her 
extensive knowledge with others. 
points to the petitioner's work as a special education resource teacher, service as the 
IEP chairperson, positive interactions with students and colleagues, and professional qualities, but 
does not indicate that the petitioner's work has had, or will continue to have, an impact beyond 
, stated: 
In her role as a Special Educator, [the petitioner] provides education for students with special 
needs both within the classroom as well as within a more individualized small group setting. 
She works with children with a myriad of disabilities ranging from Orthopedic Impairments 
to Autism and Intellectual Disabilities. I have had the opportunity to observe her teaching 
the students and it is evident that [the petitioner] does an exemplary job modifying her 
teaching techniques and utilizing scientific research based intervention strategies in order to 
educate students with such diversity of needs. Without her dedication and hard work, the 
quality of individualized education for these students would be greatly impacted. 
As a Special Education Chairperson, [the petitioner] is responsible for scheduling, organizing 
and leading IEP meetings. . . . [The petitioner] has shown proficiency in leading meetings 
that are often of a sensitive nature and has demonstrated an understanding of the wide variety 
of information presented at the meetings from a diverse group of professionals. In addition, 
she has adhered to the ever changing standards in the realm of special education as it applies 
to Maryland State Regulations and Federal Guidelines. She is one of the most efficient and 
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thorough Special Education Chairpersons that I have had the opportunity to work with here 
m 
In addition to the roles outlined by [the petitioner's] position in the county, she has also gone 
above and beyond her job title as she has taken on several roles and activities within the 
school to help extend awareness and sensitivity about individuals with disabilities . [The 
petitioner] spent disabilities awareness month preparing informational packets to distribute to 
teachers as well as age appropriate information to be read to students each day on the 
intercom regarding disability awareness. In addition, she led an after school activity for all 
students and parents within the community to help increase awareness and understanding of 
disabilities as well as to promote inclusion and understanding of differences . She also spends 
tremendou s amounts of time educating and training other special educators within the school 
building about effective teaching and behavior management strategies to use with students as 
well as updating them on new guidelines imposed by the county. 
comments on the petitioner's job responsibilities and actiVIties at 
but her observations fail to demonstrate that the petitioner's work has influenced 
the field as whole, or that the petitioner has or will benefit the United States to a greater extent than 
other similarly qualified elementary school special education teachers. 
The petitioner's references praise her abilities as a special educator and pt:rsonal character, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of the schools 
where she has taught. They also do not address the NYSDOT guidelines which, as published 
precedent, are binding on all USCIS employees. See 8 C.F.R. § 103.3(c). That decision cited school 
teachers as an example of a profession in a field with overall national importance (education), but in 
which individual workers generally do not produce benefits that are national in scope. NYSDOT at 
217, n.3. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving ." See, e.g., Matter of S-A- , 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. 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 expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's . eligibility for the 
benefit sought. Id. 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 
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Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
In addition to the reference letters, the petitioner submitted the following: 
1. An award ceremony program, photographs, and a certificate indicating that petitioner was 
among 36 recipients of an ' from the Supervisor of 
the Office of Psychological Services, in recognition of "excellence and valuable 
contributions to the ~ _ ., (April 15, 2011); 
2. A Certificate of Recognition stating that the petitioner "won 1st place in Extemporaneous 
Speech Contest (Regional Level)" during the 2nd Regional Association of Secondary 
School English Teachers Conference, · (June 6, 2002); 
3. A Certificate of Recognition from the Schools Division Superintendent, Division of 
_ __ _ Department of Education, Culture and Sports, Republic of the 
Philippines "for having won _ 
Teacher" for the 2000-2001 school year; 
4. A Certificate of Recognition from the Schools Division Superintendent , Division of 
--- Department of Education, Republic of the Philippines "for having 
served as Demonstration Teacher during the Joint School Based Training on Technology 
Integration and Computer Assisted Instruction held on September 6 and 13, 2003 at 
•. --o ----- ~~-
5. A Certificate of Appreciation from the 
for the petitioner's service "as Quiz Master in the Spelling 
Contest, held at 
III Meet" (October 29, 2002); 
6. A Certificate of Recognition from the Schools Division Superintendent, Division of 
__ _ Department of Education, Republic of the Philippines "for having 
served as Resource Speaker in the Division Seminar/Workshop on 
- ~· · ., (June 6, 2003); 
7. A Certificate of Recognition from the Schools Division Superintendent, Division of 
~ _ ~ · ~· ., · "for dedicated 
and meritorious services as Trainer and Resource Speaker in the Seminar/Workshop on 
BEC [Basic Education Curriculum] Empowered Exemplars in the Teaching of High 
School English" (July 26, 2002); 
8. A Certificate of Recognition from the Schools Division Superintendent, Division of 
Department of Education, Republic of the Philippines "for having 
served as Trainer during the Division Seminar for Untrained Secondary School Teachers 
on the Implementation of the 2002 Restructured Basic Education Curriculum" (June 
2002); 
9. A Certificate of Recognition from the Schools Division Superintendent, Division of 
Department of Education, Republic of the Philippines "for serving 
as trainer in the school based training of teachers on the implementation of the 2002 
Basic Education Curriculum Reform held at (April 2002); 
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10. A Certificate of Merit from the Schools Division Superintendent, Division of 
Region III, Department of Education, Republic of the Philippines for serving "as a 
Reading Trainer in the Division [] Seminar/Workshop on Higher Order Thinking Skills 
for the Reading Education Training Program" (July 2001); 
11. A Certificate of Recognition from the Schools Division Superintendent, Division of 
Region III, Department of Education, Republic of the Philippines "for having 
won 2nd Place in Readers' Theater Contest during the 2nd Division English Olympics held 
at Teachers' Training Center" (January 11, 2002); 
12. A Certificate of Merit from the Schools Division Superintendent, Division of 
Region III, Department of Education "for having won 4th place in Readathon category 
during the []English Olympics held at on December 11, 2001"; 
13. A Certificate of Merit from the Schools Division Superintendent, Division of 
Region III, Department of Education "for having won ~ 
during the []English Olympics held at: -· · - · · on December 11, 2001"; 
14. A Certificate of Participation from the Department of Education, Culture and Sports, 
National Capital Region - Division of City Schools, Private School Services, 
"for having been a Trainer at the inter-private schools Elocution Contest conducted on 
September 8, 1994 at 
15. A Certificate of Recognition from the Division of City Schools, "for having 
served as Trainer in the District Level Oratorical Contest on Drug Abuse Prevention" 
(November 17, 1992); 
16. A Certificate of Appreciation from the Department of Special Education, "in 
recognition of valuable contributions to the Special Education Department" (May 20, 
2011); 
17. A Certificate of Appreciation "in recognition of her valuable contributions to: The 
'Think Tank"' 
September 15, 2009; 
18. A "Certificate of Seussational Achievement" for participating in the National Education 
Association's "Read Across America Day" (March 2, 2009); 
19. A "World Record Reader [ ] certificate presented to [the petitioner] on October 2, 2008 
for joining in Jumpstart's Read for the Record"; 
20. A Certificate of Appreciation from the principal of for 
"dedication to the students of (May 2008); 
21. Employment verifications; 
22. Earnings statements; 
23. Academic records and transcripts; and 
24. A Maryland Educator Certificate. 
Again, academic records, occupational experience, professional certifications, salary information, 
and recognition for achievements are all elements that relate to a finding of exceptional ability, but 
exceptional ability is not sufficient to establish eligibility for 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 
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may serve as evidence of the petitioner's impact and influence on her field, but the petitioner has 
failed to demonstrate that the awards she received (items 1 - 20) have more than local, regional, or 
institutional significance. There is no documentary evidence showing that items 1 through 24 are 
indicative of the petitioner's influence on the field of education at the national level. 
The petitioner also submitted numerous certificates of participation, completion, and attendance for 
training courses and seminars relating to her professional development. While taking courses and 
attending seminars are ways to increase one's professional knowledge and to improve as a teacher, 
there is nothing inherent in these activities to establish eligibility for the national interest waiver. 
In addition, the petitioner submitted copies of her "satisfactory" teacher evaluations from 
The petitioner, however, failed to demonstrate 
how the evaluations reflect that she has impacted the field to a substantially greater degree than other 
similary qualified special educators and how her specific work has had significant impact outside of 
the schools where she has taught. 
The petitioner also submitted evidence of her teaching material, organization of special programs at 
her school such as Disability Awareness Night, coordination of disability awareness workshops for 
educators at her school, and other educational activities, but the petitioner does not explain how the 
submitted documentation demonstrates her influence on the field as a whole. 
Additionally, the petitioner submitted a "Master's Project Paper" that she completed for 
~ _ · but there is no evidence demonstrating that the 
petitioner's findings were implemented by a number of schools, were frequently cited by 
independent educational scholars, or have otherwise influenced the field of special education as a 
whole. 
The director issued a request for evidence on February 2, 2013, instructing the petitioner to submit 
evidence demonstrating "that the benefits of her future work in the U.S. will be national in scope" 
and that she "has a past record of specific prior achievement with some degree of influence on the 
field as a whole." 
In response, the petitioner submitted an April 11, 2013 letter from a parent whose daughters attend 
commenting on the petitioner's enthusiasm, caring manner , service 
as IEP chair, and coordination of Disability Awareness Night at the school, but the parent's 
observations fail to explain how the petitioner's impact or influence as a special educator is national 
m scope. 
In addition, the petitioner submitted an April 16, 2013 letter from ~ a student intern 
from the commenting on the petitioner's capabilities as a special education 
mentor, work as IEP chair, and coordination of Disability Awareness Night at 
Elementary School. However, fails to provide specific examples of how the petitioner's 
work has influenced the field of special education as a whole. 
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The pet1t10ner also submitted additional "satisfactory" teacher evaluations, documentation of a 
second Disability Awareness Night coordinated by the petitioner at 
and a personal statement attesting to the importance of her work as a special education teacher with 
but the submitted documentation fails to demonstrate the petitioner's specific influence on 
the field as a whole. 
Additionally, the petitioner submitted President George H.W. Bush's "Remarks on Signing the 
Immigration Act of 1990"; information about Public Law 94-142; an article in Encyclopedia of the 
Supreme Court of the United States about Brown v. Board of Education, 347 U.S. 483 (1954); a 
copy of Section 1119 of the No Child Left Behind Act (NCLBA); a September 26, 2011 article in 
Education Week entitled "Shortage of Special Education Teachers Includes Their Teachers"; an 
article entitled "Supporting Science, Technology, Engineering, and Mathematics Education -
Reauthorizing 
the Elementary and Secondary Education Act"; "Barack Obama on Education" 
questions and answers posted at www.ontheissues.org; a report entitled "Special Education Teacher 
Retention and Attrition: A Critical Analysis of the Literature"; information about STEM (science, 
technology, engineering and mathematics) fields printed from the online encyclopedia Wikipedia; 
and an article entitled "STEM Sell: Are Math and Science Really More Important Than Other 
Subjects?" 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 benefits the national interest by virtue of engaging in the field. NYSDOT 
at 217. Such assertions and information address only the "substantial intrinsic merit" prong of 
NYSDOT s national interest test. None of the preceding documents demonstrate that the petitioner's 
specific work as an elementary school special education teacher has influenced the field as a whole. 
The director denied the petition on May 4, 2013. The director stated that the petitioner had not shown 
"that the benefits of her intended work will be national in scope, or that [the] petitioner has a record of 
achievement with some degree of influence on her field as a whole." The director therefore concluded 
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. 
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 [NCLBA] as the guiding 
principle rather than the precedent case" NYSDOT. With regard to following the guidelines set forth 
in NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 
8 C.P.R. § 103.3(c). 
Counsel argues that Congress passed the NCLBA three years after the issuance of NYSDOT as a 
precedent decision, and claims that "[t]he obscurity in the law that NYSDOT sought to address has 
been clarified," because "Congress has spelled out the national interest 
with respect to public 
elementary and secondary school education" through such legislation. In addition, counsel contends 
that "the [NCLBA] and the Obama Education Programs, taken collectively, provide the underlying 
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context for the adjudication of a national interest waiver application made in conjunction with an 
E21 visa petition for employment as a Highly Qualified Teacher in the public school sector." 
Counsel does not support the assertion that the NCLBA modified or superseded NYSDOT and 
identifies no specific legislative or regulatory provisions that exempt school teachers from NYSDOT 
or reduce its impact on them. 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). In contrast to 
counsel's claims regarding the NCLBA, section 5 of the Nursing Relief for Disadvantaged Areas 
Act of 1999, Pub. L. 106-95 (November 12, 1999), specifically amended the Act by adding section 
203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. Congress not only can 
amend the Act to clarify the waiver provisions, but has in fact done so in direct response to 
NYSDOT. Counsel, however, has not shown that the NCLBA contains 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." 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." Again, neither the Act nor the NCLBA create or 
imply any blanket waiver for highly qualified foreign teachers. As members of the professions, 
teachers are included in the statutory clause at section 203(b )(2)(A) that includes the job offer 
requirement. 
Counsel asserts that "Congress legislated [NCLBA] to serve as guidance to USCIS in granting legal 
residence to 'Highly Qualified Teachers."' Section 9101(23) of the NCLBA defines the term 
"Highly Qualified Teacher." Briefly, by the statutory definition, a "Highly Qualified" elementary 
school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• has demonstrated, by passing a rigorous State test, subject knowledge and teaching skills 
in reading, writing, mathematics, and other areas of the basic elementary school 
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NON-PRECEDENT DECISION 
cuniculum, 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. 
In addition, the U.S. Department of Labor's Occupational Outlook Handbook, 2012-13 Edition, 
describes the minimum qualifications necessary to become a special education teacher: 
Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
All states require public special education teachers to have at least a bachelor's degree. Some 
of these teachers major in elementary education or a content area, such as math or chemistry, 
and minor in special education. Others get a degree 
specifically in special education . 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification . 
* * * 
Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
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. 
(b)(6)
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Page 14 
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. 
See http://www.bls.gov/ooh/Education-Training-and-Library/Special-education-teachers.htm#tab-4, 
accessed on January 2, 2014, copy incorporated into the record of proceeding. The petitioner has not 
established that the NCLBA's "Highly Qualified" standard involves requirements that are 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 specific 
qualifications and experience are not required for "highly qualified" status under the NCLBA. 
Counsel quotes 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 "highly qualified" 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 asserts that the director "ened in disregarding evidence demonstrating the national scope of 
the petitioner's proposed benefit through her effective role in serving the national educational 
interest of closing the achievement gap." The record, however, contains no evidence that the 
petitioner's efforts have significantly closed that gap in or nationally. 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. 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 petitioner's] assigned school. The 
2012 MSA [Maryland School Assessment] Reading results show that out of the 24 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Maryland school districts : ranked near the bottom at the "All Student" level for each 
MSA-covered grade level .... 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO [Annual Measurable Objectives] targets 
at the "All Student" level .... 
The petitioner has worked for since 2007, and thus had been there for a number of years 
before the administration of the 2012 MSA tests. Counsel does not 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 asserts that the petitioner "is an effective teacher in raising student achievement in STEM," 
but he cited no documentary 
evidence to support the claim. As previously discussed, the 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena at 534, n.2; 
Matter of Laureano at 3, n.2; Matter of Ramirez-Sanchez at 506. In addition, while counsel asserts that 
the petitioner has "proven success in raising proficiency of her students," he did not point to specific 
STEM test results or other documentary evidence in the record to support the assertion. Regardless, 
there is no documentation demonstrating that the petitioner's work has had an impact or influence 
outside of the school where she has taught. 
Counsel contends that the "director erred in his appreciation of petitioner's past achievement," but 
counsel fails to point to specific evidence in the record showing that the petitioner's work has had a 
national impact or has otherwise influenced the field as a whole. 
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers and that USCIS "should have 
presented its own comparable worker." The NYSDOT guidelines, however, do not require an item­
by-item comparison of the petitioner'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 educator. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Counsel contends that "the Immigration Service is requiring more from the beneficiary's credentials 
[ 
] tantamount to having exceptional ability," but an individual is not required to qualify as an alien 
of exceptional ability in order to receive the national interest 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 establish eligibility for the national interest waiver. 
The director did not require the petitioner to establish exceptional ability in her field. Instead, the 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
director determined that the petitioner had "not established that a waiver of the requirement of an 
approved labor certification will be in the national interest of the United States." 
Counsel states that while the NCLBA "requirements set minimum standards for entry into teaching 
of core academic subjects, they have nC?t driven strong improvements in ... the effectiveness of 
teachers in raising student achievement." However, assertions regarding the need for educational 
reform in the United States only address the "substantial intrinsic merit" prong of NYSDOTs 
national interest test. In addition, counsel quotes a study that concluded the "Teach For America" 
program "rarely had a positive impact on reading achievement." The record, however, does not 
include a copy of the study. Once again, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena at 534, n.2; Matter of Laureano at 3, n.2; Matter of Ramirez­
Sanchez at 506. Regardless, counsel does not show that the petitioner's individual teaching efforts, 
after several years in the United States, have set her apart from other educators with regard to raising 
student achievement in PGCPS or nationally. 
Counsel asserts that 59% of special educators in the nation hold a Master's degree and that 92% of 
special educators have full certification. These numbers indicate that nearly three out of five special 
educators in the United States possess professional credentials comparable to those of the petitioner. 
According to counsel's statistics, the petitioner's credentials do not readily stand apart from those of 
most others in her field. 
Counsel cites to studies pointing to high turnover rates and inexperience among special education 
teachers. The unavailability of qualified U.S. workers or the amelioration of local labor shortages 
are not considerations in national interest waiver determinations because the alien employment 
certification process is already in place to address such shortages. NYSDOT at 218. Again, the issue 
of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
U.S. Department of Labor through the alien employment certification process. ld. at 221. The 
studies mentioned by counsel show that there is a demand for credentialed special education 
teachers, a demand that the alien employment certification process can and, in this instance, did 
address. Specifically, the petitioner is the beneficiary of an approved labor certification that PGCPS 
filed on her behalf on June 29, 2010. 
Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she 
possesses qualifications "that could not be articulated in conformity with the process regulations." 
Counsel 's assertion, however, is not supported by the evidence in the record. As previously noted, 
the petitioner is the beneficiary of an approved labor certification filed in her behalf by 
Moreover, the employment certification process outlines the minimum requirements for a job 
opportunity. It does not preclude the employer from hiring applicants that exceed the minimum 
qualifications for the position. Regardless, the inapplicability or unavailability of a labor 
certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still 
must demonstrate that she will serve the national interest to a substantially greater degree than do 
others in the same field. !d. at 218, n.5. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
Counsel contends that a waiver would ultimately serve the interests of United States teachers, 
because if schools "fail to meet the high standard required under the [NCLBA]," the result would be 
"not only ... closure of these schools but [also] loss of work for those working in those schools." 
Counsel, however, offers no specific examples of school closures and teacher layoffs attributable to 
not ·meeting NCLBA standards . Again, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena at 534, n.2; Matter of Laureano at 3, n.2; Matter of Ramirez­
Sanchez at 506. In addition, counsel asserts that by waiving the labor certification requirement for 
highly qualified teachers such as the petitioner, "more American teachers will have ... employment 
opportunities" because standards will be met and schools will not be abolished. As previously 
discussed, there are no blanket waivers for highly qualified foreign teachers; USCIS grants national 
interest waivers on a case-by-case basis, rather than establishing blanket waivers for entire fields of 
specialization. NYSDOT at 217. 
A plain reading of the statute indicates that engaging in a profession (such as teaching) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
The petitioner has not established that her past record of achievement is at a level sufficient to waive 
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 her influence be national in scope. /d. at 217, n.3. More 
specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." /d. at 
218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole"). On the basis of the evidence submitted, the 
petitioner has not established that a waiver of the requirement of an approved labor certification will be 
in the national interest of the United States. 
ln 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.