dismissed EB-2 NIW Case: Special Education

(b)(6)
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 
DATE : 
OC1 0 S 20\3 
Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C . § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
}AQ,dnc0 n Ron Rosenberg 
U Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. According to 
Part 6 of the Form I-140, the petitioner seeks employment as a "Special Education Teacher" for 
. The petitioner has worked for ·ince 2007. At the 
time of filing, the petitioner was teaching at in 
Maryland. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a 
labor certification, is in the national interest of the United States. The director found that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) . .. the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The 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 certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise ... . " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 
29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the 
application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in 
scope. Finally, the petitioner must establish that the alien will serve the national interest to a 
substantially greater degree than would an available United States worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest is not sufficient to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The USCIS regulation at 8 C .P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner has established that her work as a special education teacher is in an area of substantial 
intrinsic merit. It remains, then, to determine whether the proposed benefits of petitioner's work 
would be national in scope and whether she will benefit the national interest to a greater extent than 
an available U.S. worker with the same minimum qualifications . 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
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Page4 
establish eligibility for a national interest waiver. Id. at 220. Moreover, it cannot suffice to state that 
the alien possesses useful skills, or a "unique background." Special or unusual knowledge or 
training does not inherently meet the national interest threshold . The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department 
of Labor. !d. at 221. 
The petitioner filed the Form I-140 petltwn on June 29, 2012. In a June 28, 2012 letter 
accompanying the petition, counsel stated that the petitioner's national interest waiver is "based on 
her expertise as evidenced by her advanced degrees, her extensive experience and numerous 
achievements and citations." Academic degrees, 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. With regard to the petitioner's 
advanced degrees, the director has already determined that the petitioner qualifies for classification 
as a member of the professions holding an advanced degree. This issue in this matter is whether the 
petitioner's past record of achievement is at a level that would justify a waiver of the job offer 
requirement. The petitioner's recognized achievements and work experience as a special educator 
will be further discussed later in this decision. 
The petitioner submitted various letters of support from administrators and teachers discussing her 
work as an educator. As some of the letters contain similar claims addressed in other letters, not 
every letter will be quoted. Instead, only selected examples will be discussed to illustrate the nature 
of the references' claims. 
Principal, 
------------------------~ 
stated: 
This letter serves as a recommendation for [the petitioner], a full time Special Education 
Teacher at She has taught Regional Class-Ortho, and now 
Regional Class-Autism Group in our Special Education Department. I have known her for 
more than three years now and it is her 4th year at 
[The petitioner] has the heart of benevolence to the education of special children. She is 
talented, well-planned and does excellent job in executing lessons in her class. Her special 
training and duties include writing IEP [Individualized Education Program], making ALT­
MSA [Alternative Maryland State Assessment] artifacts, holding a meeting with the team 
and parents, managing students' classroom behavior, and other things that pettain to the well­
being of our students. She does outstanding job in incorporating different modalities of 
teaching and learning. On a professional note, [the petitioner] follows protocol, respects 
authorities, works well with her teammates and other staff members. She has a great rapport 
with the students and their parents. 
Mr. comments on the petitioner's effectiveness as a special educator and her responsibilities at 
but he does not indicate that the petitioner's work has had, or will 
(b)(6) NON-PRECEDENT DECISION 
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continue to have, an impact beyond the students under her tutelage and the local school system that 
employed her. 
_ ___ Assistant Principal, stated: 
As assistant principal, I observed how [the petitioner] conducts her classes in the Special 
Education Department, CRI (Community Reference Instruction) Program. CRI is a self­
contained class, except for Music and Adapted P.E. (Physical Education). [The petitioner] 
teaches Reading, Mathematics, Science and Social Studies . I have observed [the petitioner) 
switched from Direct to One-on-One instruction using technologies available for Verbal and 
Non-Verbal Students. This year, she was assigned to teach 8 students, 2 are non-verbal and 6 
are verbal students who have different disabilities ranging from Intellectual Disability to 
Autism with Asperger's Syndrome. [The petitioner] was very comfortable using all 
technologies and programs appropriate to students' learning needs. [The petitioner's] 
Computer/Pixwriter, Reading, Writing, Individual/Social Task, IEP stations in every lesson 
accomplished and done by the students in a timely manner. She is compassionate, but firm, 
in her dealing with her students. 
[The petitioner] maintains parental logs in the students' IEP, daily logs m student's 
communication book, telephone logs, and attends her student's IEP meetings. 
[The petitioner] is very conscientious, committed and a model teacher, she strives for her 
students to pass and improve performance in ALT-MSA (Alternative Maryland State 
Assessment). 
Mr. comments on the petitioner's teaching duties and the quality of her instruction at 
but his observations do not set the petitioner apart from other competent and 
qualified teachers, or explain how the petitioner's work has impacted the field beyond the students at 
her school. 
Special Education Teacher, stated: 
I had the privilege to work with [the petitioner] at since 1996 to 2007 
for a period of ten (10) years before coming to United States of America. We worked 
together as a faculty member and colleague of the above-mentioned University. Th~ 
following is my honest observation of her: 
• As lecturer on a topic "Oral Speech for Special Education Teachers," I found her very 
inspiring and knowledgeable about Picture Communication Symbols (PECS) and Voice 
Output Device, (VOID). These tools are very vital in communicating with non-verbal 
children. She is my model for communicating with Special Education Children; 
• As a volunteer teacher in the Special Education Department under the umbrella of the 
College of Education, [the petitioner] is tireless. She squeezed time to have a hands on 
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with students of diverse disabilities-autistic, hyper activity, mental retardation and with 
behavior problems. She can reach out even to the parents who are on the stage of "denial" 
meaning they refused to understand that their children have learning disabilities; 
• As a founder of RAP, (Reading Association of the Philippines,) 
her encouragement for teachers and students alike to make it a habit 
to read is contagious; 
• As a leader, she indirectly models for us to follow and keep up the good work; and 
• As a colleague, she is selfless, she thinks of others before herself, giving extra miles to 
support and share be it academic or personal. 
It is my great pleasure to speak about [the petitioner], and may this recommendation drive 
home the point that she is an exemplary teacher, a good fellow worker and a colleague 
needed in a workplace or any institute of learning. 
Ms. comments on the petitioner's work as a faculty member a but Ms. 
fails to provide specific examples of how the petitioner's work has influenced the field as a 
whole. 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. !d. at 219, n. 6. Regardless, the record does not indicate 
that the petitioner continues to perform similar activities in a university setting in the United States. 
The petitioner's past duties on a university's faculty are not necessarily a reliable guide for what the 
petitioner will do as a special education teacher. 
The petitioner's references praise the petitioner's teaching abilities and personal character, but they 
do not demonstrate that the petitioner's work has had an impact or influence outside of 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. In the present matter, the benefits of the petitioner's impact as special educator are limited 
to the students at her school and, therefore, not national in scope. 
In addition to reference letters, the petitioner submitted the following: 
1. A Certificate of Award from the principal of 
the petitioner's "professional commitment, dedication, 
'(June 11, 2012); 
2. A Certificate of Appreciation from the 
for her "efforts 
in appreciation of 
and performance at 
and dedication m servmg the 
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Agency as an Accreditor and partner in promoting quality Christian Education through 
Voluntary Accreditation" (May 26, 2005); 
3. A Certificate of Appreciation from for delivering a lecture on 
"Strategies in Teaching English" (June 9, 2004); 
4. A Certificate of Appreciation from for serving as a resource speaker 
on the topic "Making Effective Presentations for Teachers" (November 8, 2002); 
5. A Certificate of Appreciation from for serving as a resource speaker 
on the topic "Responding to Literature Through Writing" (November 8, 2002); 
6. A Certificate of Appreciation from for serving "as Facilitator during 
the Seminar-Workshop on Values Infusion and Immersion and launching the Trait of the 
Week Program" (November 22, 2002); 
7. A "Teacher Leadershi Project Final Award" as "Instructional Team Leader" from the 
principal of (May 11, 2012); 
8. A Certificate of Appreciation from for services as Chairman of the 
Language Department (July 13, 2001); 
9. A Certificate of Recognition from the for 
promoting National Crime Prevention Week concepts at the 
(September 7, 2000); 
10. A Certificate of Appreciation from "for having served 
as guest speaker in the Seminar-Workshop on Teaching Methodologies" (May 9, 1999); 
11. A Certificate of Appreciation from for serving as a guest speaker at a 
seminar entitled "Business Communication" (December 10, 1998); 
12. A Certificate of Appreciation from for lecturing on the topic "Speech 
Power and Personality Development" (December 10, 1998); 
13. A Certificate of Appreciation from for serving as a speaker at "the 
Seminar Workshop" (March 12, 2004); 
14. A Certificate of Appreciation from for speaking on the topic · 
"Concerns in Language Teaching in the New Millennium" (June 2001); 
15. A Certificate of Appreciation from for "sharing his/her knowledge 
and expertise as Guest in 'Educating the Filipino,' the official radio program of 
' (November 30, 2002); 
16. A Maryland Educator Certificate; 
17. A Professional Teacher certification from the Republic of the Philippines Professional 
Regulation Commission, Manila; 
18. Praxis Series test results 
19. Degrees and academic transcripts; and 
20. Employment verifications. 
Again, academic records, experience, professional certifications, and recognition for achievements 
are all elements are all elements that pertain to a finding of exceptional ability, but exceptional 
ability is not sufficient to warrant the national interest waiver. The plain language of section 
203(b )(2)(A) of the Act indicates that aliens of exceptional ability are subject to the job offer 
requirement (including alien employment certification). Particularly significant awards may serve as 
evidence of the petitioner's impact and influence on her field, but the petitioner has failed to 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
demonstrate that the awards she received (items 1 - 15) have more than local or institutional 
significance. For instance, the petitioner's awards from the rinci al of 
(items 1 and 7) and certificates of appreciation from (items 3 - 6, 8, and 11 -
15) reflect institutional recognition for school faculty rather than nationally significant awards in the 
field of education. There is no documentary evidence showing that items 1 - 20 are indicative of the 
petitioner 's influence on the field of education at the national level. 
The petitioner submitted certificates of proficiency, participation, completion, and attendance for 
training courses, seminars, and workshops relating to her professional development. While taking 
courses and attending seminars and workshops are ways to increase one's professional knowledge 
and to improve as a teacher, there is nothing inherent in these activities to establish eligibility for the 
national interest waiver. 
The petitioner submitted copies of her "satisfactory" teacher evaluations from 
The petitioner, however, did not submit documentary evidence indicating that she has 
impacted the field to a substantially greater degree than other similary qualified special education 
teachers. Moreover, there is no evidence showing that the petitioner's specific work has had 
significant impact outside of the schools where she has taught. 
The petitioner submitted several articles that briefly mention her involvement in 
events and organizations, but circulation evidence for the newspapers, newsletters, and school 
publication in which the articles appeared was not submitted to demonstrate the scope of the 
readership which would support a finding that the petitioner's work has had national impact. In 
addition, none of the articles contains information demonstrating that the petitioner has influenced 
the field of special education as a whole. 
The director issued a request for evidence, instructing the petitioner to submit evidence to establish 
that the benefits of her proposed employment "will impart national-level benefits" and that her "past 
record of achievement . .. justifies projections of future benefit to the national interest." 
In response, the petitioner submitted President George H.W. Bush's "Remarks on Signing the 
Immigration Act of 1990"; information about Public Law 94-142; a copy the Supreme Court 
decision in Brown v. Board of Education, 347 U.S. 483 (1954); a copy of Section 1119 of the No 
Child Left Behind Act (NCLBA); a statement by U.S. Secretary of Education Arne Duncan on the 
National Assessment of Educational Progress Reading and Math 2011 Results; a September 26, 
2011 article in Education Week entitled "Shortage of Special Education Teachers Includes Their 
Teachers"; information about STEM (science, technology, engineering and mathematics) fields 
printed from the online encyclopedia Wikipedia; an article entitled "STEM Sell: Are Math and 
Science Really More Important Than 
Other Subjects?"; a report entitled "Special Education Teacher 
Retention and Attrition: A Critical Analysis of the Literature"; an abstract for a report entitled 
"SPeNSE: Study of Personnel Needs In Special Education"; a 2009 article in the Wall Street Journal 
entitled "The Importance Math & Science in Education"; an article entitled "Importance of Science 
and Math Education"; and the written testimony of Microsoft's Bill Gates before the Committee on 
Science and Technology of the United States House of Representatives (March 12, 2008). As 
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previously discussed, general arguments or information regarding the importance of a given field of 
endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an 
individual alien benefits the national interest by virtue of engaging in the field. NYSDOT , 22 I&N 
Dec. at 217. These assertions address only the "substantial intrinsic merit" prong of NYSDOTs 
national interest test. None of the preceding documents demonstrates that the petitioner's specific 
work has influenced the field as a whole. 
The petitioner submitted excerpts from a book that she authored entitled and a 
November 20, 2012 certification from' "stating that the book has sold 
585 copies since its publication in 2004. There is no documentary evidence showing that this book 
or any other publications authored by the petitioner have been frequently cited by independent 
educational scholars , have had a national impact on teaching methodologies, or have otherwise 
influenced the field of education as a whole. 
The petitioner submitted documentation indicating that she received "Highly Satisfactory" ratings 
from from 1996 - 2006. Once again, there is no documentary evidence 
indicating that the petitioner has impacted the field to a substantially greater degree than other 
similary qualified special education teachers. In addition, there is no evidence showing that the 
petitioner's specific work has had significant impact outside of the schools where she has taught. 
The etitioner submitted an October 27, 2012 Certificate of Excellence from the 
• "for sharing her expertise in 'Strategies in 
Reading Framework for Teaching Lesson Planning,"' The certificate, however, was received by the 
petitioner subsequent to the filing date of the petition. Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
A petition cannot be approved at a future date after the petitioner becomes eligible under a new set 
of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, 
citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that 
come into being only subsequent to the filing of a petition." !d. at 176. Accordingly, the certificate 
cannot be considered as evidence to establish the petitioner's eligibility. 
The petitioner submitted documentation indicating that she has provided service and support for 
various charitable causes and Christian ministries, but there is no documentary evidence 
demonstrating that petitioner's work has influenced the field of education as a whole. 
The petitioner submitted a letter from parents of a student taught by the 
petitioner at stating: 
[The petitioner] has been a teacher of during 7th and 8th Grades .... He is diagnosed 
to have ASD (Autism Spectrum Disorder) and cannot talk. [The petitioner] has gone out of 
her way to help him through the use of Technology such as Pixwriter software, Talk Tech, 
Big and Small Macks and other Voice Output Devices. · 
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[The petitioner] ran a very organized classroom. She is very articulate and expressive in both 
spoken and written languages. She is a very active teacher and interacted with her students 
in a friendly manner. She demonstrated genuine caring and respect for individual students 
and went extra miles to help them. [The petitioner] teaches reading and never gets tired of 
encouraging students to learn according to their diverse needs. She has strong rapport with 
parents and other teachers, and adults in her classroom. 
had made some significant progress with his behavior and speech under [the 
petitioner]. [The petitioner] knows him very well. ... We need more teachers like her who 
exerts selfless efforts to our children. 
Mr. and Mrs. speak highly of the petitioner's teaching capabilities and her interactions with 
their son and his classmates. While their comments demonstrate that the petitioner works in an area 
of substantial intrinsic merit, they do not indicate that the petitioner's work has influenced the field 
as whole, or that the petitioner has or will benefit the United States to a greater extent than other 
qualified special education teachers. 
The petitioner also submitted a letter from 
stating: 
Paraprofessional Educator, 
[The petitioner] immediately established rapport with her 8
1
h grade special needs students 
whose disabilities ranged from autism to Downs Syndrome. She quickly proceeded to learn 
each child's strengths and weaknesses. This prepared her to address various academic needs 
with carefully planned classwork and homework. 
Ms. comments on the petitioner's effectiveness as a special educator, but does not provide 
specific examples of how the petitioner's work has influenced the field as a whole. 
The petitioner's references speak admirably about her, but their comments do not establish that the 
benefits of the petitioner's employment with are national in scope or that her past record of 
achievement is at a level that would demonstrate her eligibility for a national interest waiver. The 
Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
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 
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whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
The director denied the petition on February 1, 2013. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director indicated that the benefits of the petitioner's work as a special education 
teacher for are "limited to a local impact." The director also determined that the petitioner had 
failed to demonstrate "original innovations in teaching special education that would benefit the national 
interest." 
On appeal, counsel asserts that "USCIS erred in g1vmg insufficient weight to the national 
educational interests enunciated in the No Child Left Behind Act of 2001 as the guiding principle 
rather than the precedent case" NYSDOT. Counsel, however, does not identify any specific 
legislative or regulatory provisions in the NCLBA that exempt foreign school teachers from 
NYSDOT or reduce its impact on them. It is within Congress's power to establish a blanket waiver 
for teachers, "highly qualified" or otherwise, but contrary to counsel's assertions, that waiver does 
not exist. With regard to following the guidelines set forth in NYSDOT, by law, USCIS does not 
have the discretion to ignore binding precedent. See 8 C.F.R. § 103.3(c). 
Counsel points to the NCLBA and other government initiatives to reform and improve public 
education. Counsel states that Congress passed the NCLBA three years after the issuance of 
NYSDOT as a precedent decision and that "Congress has spelled out the national interest with respect 
to public elementary and secondary school education" through such legislation. Counsel does not 
support the assertion that the NCLBA modified or superseded NYSDOT; that legislation did not 
amend section 203(b )(2) of the Act. 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, section 
5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (November 12, 1999), 
specifically amended the Immigration and Nationality Act by adding section 203(b)(2)(B)(ii) to 
create special waiver provisions for certain physicians. Because Congress not only can amend the 
Act to clarify the waiver provisions, but has in fact done so in direct response to NYSDOT, counsel 
has not shown that the NCLBA indirectly implies a similar legislative change. 
Counsel further states: 
With respect to the E21 visa classification, INA§ 203(b)(2)(A) provides in relevant part that: 
"Visas shall be made available ... to qualified immigrants who are members of the professions 
holding advanced degrees or their equivalent or who because of their exceptional ability in the 
sciences, arts, or business, will substantially benefit prospectively the national . .. educational 
interests, . . . of the United States, and whose services in the sciences, arts, professions, or 
business are sought by an employer in the United States. 
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Page 12 
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." Neither the Immigration and Nationality Act nor the 
NCLBA, separately or in combination, create or imply any blanket waiver for foreign teachers. 
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 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 benefit arising from the petitioner's work is national in scope because of the 
"national priority goal of closing the achievement gap." The record, however, contains no evidence 
that the petitioner's efforts have significantly closed that gap. The national importance of 
"education" as a concept, or "educators" as a class, does not establish that the work of one teacher 
produces benefits that are national in scope. See NYSDOT at 217, n.3. A local-scale contribution to 
an overall national effort does not meet the NYSDOT threshold. The aggregate national effect from 
thousands of teachers does not give national scope to the work of each individual teacher. 
Counsel continues: 
The national priority goal of closing the achievement gaps between minority and 
nonminority students, and between disadvantaged and more advantaged children is 
especially relevant in the context of The 
2012 MSA [Maryland School Assessment] Reading results show that out of the 24 
Maryland school districts ranked near the bottom at the 'All Student' level for each 
MSA-covered grade level .... 
* * * 
Additionally, it is noteworthy that the updated 2012 Maryland Report Card shows that 
did not meet its Reading proficiency AMO targets .... 
The petitioner's evidence includes MSA Reading results for and 
public schools, and public school IJrogress reports fm and 
The petitioner has worked for since 2007, and thus had been there for a number of 
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years before the administration of the 2012 MSA tests. Counsel fails to explain how the 2012 MSA 
results for (which indicate low rankings relative to other Maryland school districts) establish 
that the petitioner has played an effective role in "closing the achievement gap." 
Counsel states that the petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but he cited no documentary evidence to 
support that claim. As previously discussed, the unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 
n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 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 has had an impact or influence outside of 
Counsel points to the petitioner's award certificates, publications, and educational credentials as 
evidence of her "past history of achievement." As previously discussed, the preceding evidence 
does not show that the petitioner has had a wider impact on the field of special education or 
otherwise influenced the field as a whole. 
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it 
"impossible" to compare the petitioner with other qualified workers and that users "should have 
presented its own comparable worker." The NYSDOT guidelines, however, do not require an item­
by-item comparison of an alien's credentials with those of qualified United States workers. The key 
provision is that the petitioner must establish a record of influence on the field as a whole. 
Moreover, there is no provision in the statute, regulations, or NYSDOT requiring the director to 
specifically identify another equally qualified special educator. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; MatterofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Counsel claims: "the Immigration Service is requiring more from the beneficiary's credentials and 
tantamount to having exceptional ability," even though one need not qualify as an alien of 
exceptional ability in order to receive the waiver. As previously discussed, the requirements for 
exceptional ability are separate from the threshold for the national interest waiver. It remains that 
the petitioner's evidence does not facially establish eligibility for the national interest waiver. The 
director did not require the petitioner to establish exceptional ability in her field. Instead, the 
director observed that the petitioner's evidence does not show that the petitioner's work has had an 
influence beyond the school district where she has worked. 
Counsel cites to studies pointing to high turnover rates and inexperience among special education 
teachers. As the alien employment certification process was designed to address the issue of worker 
shortages, a shortage of qualified workers in a given field does not establish eligibility for the national 
interest waiver. The issue of whether similarly-trained workers are available in the U.S. is an issue 
under the jurisdiction of the Department of Labor. NYSDOT at 221. This information submitted by 
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the petitioner shows that there is a demand for credentialed special education teachers, a demand that 
the labor certification process can address. 
Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she 
possesses qualifications above the minimum required for the job she seeks. Counsel states that the 
labor certification guidelines "require only a bachelor's degree," and therefore "may not meet the 
objective of employers to hire highly qualified teachers pursuant to No Child Left Behind." On page 
15 of the appellate brief, however, counsel acknowledges that the statutory definition of a "Highly 
Qualified Teacher" requires only a bachelor's degree and state certification . 
. Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." Briefly, by the 
statutory definition, a "Highly Qualified" elementary school teacher: 
• has obtained full State certification as a teacher or passed the State teacher licensing 
examination, and holds a license to teach in such State; 
• holds at least a bachelor's degree; and 
• has demonstrated, by passing a rigorous State test, subject knowledge and teaching skills 
in reading, writing, mathematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienced teachers not "new to the profession") 
demonstrates competence in all the academic subjects in which the teacher teaches based 
on a high objective uniform State standard of evaluation. 
In addition, the petitioner submitted information from the U.S. Department of Labor's Occupational 
Outlook Handbook describing the minimum qualifications necessary to become a special education 
teacher: 
Public school teachers are required to have a least a bachelor's degree and a state-issued 
certification or license. 
* * * 
Education 
All states require public special education teachers to have at least a bachelor's degree. Some 
of these teachers major in elementary education or a content area, such as math or chemistry, 
and minor in special education. Others get a degree specifically in special education. 
* * * 
Some states require special education teachers to earn a master's degree in special education 
after earning their teaching certification. 
* * * 
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Licenses 
All states require teachers in public schools to be licensed. A license is frequently referred to 
as a certification. 
* * * 
Requirements for certification vary by state. However, all states require at least a bachelor's 
degree. They also require completing a teacher preparation program and supervised 
experience in teaching, which is typically gained through student teaching. Some states 
require a minimum grade point average. 
Many states offer general special education licenses that allow teachers to work with students 
across a variety of disability categories. Others license different specialties within special 
education. 
Teachers are often required to complete annual professional development classes to keep 
their license. Most states require teachers to pass a background check. Some states require 
teachers to complete a master's degree after receiving their certification. 
Some states allow special education teachers to transfer their licenses from another state. 
However, some states require even an experienced teacher to pass their own licensing 
requirements . 
All states offer an alternative route to certification for people who already have a bachelor's 
degree but lack the education courses required for certification. Some alternative certification 
programs allow candidates to begin teaching immediately, under the close supervision of an 
experienced teacher. 
The petitioner has not established that the "Highly Qualified" standard involves requirements that 
are significantly more stringent than those outlined in the Occupational Outlook Handbook, or that a 
public school could not obtain a labor certification for a "Highly Qualified Teacher." Thus, the 
petitioner's level of education and experience are not required for "highly qualified" status under the 
NCLBA. Counsel, therefore, did not support the claim that the labor certification process frustrates 
the NCLBA's mandate for schools to employ "highly qualified teachers." 
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 No Child Left Behind (NCLB) 
Law," the result would be "not only ... closure of these schools but [also] loss of work for those 
working in those schools." Counsel, however, offers no specific examples of school closures and 
teacher layoffs attributable to not meeting NCLBA standards. Once again, 
the unsupported assertions 
of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of 
Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. In addition, counsel 
asserts that by waiving the labor certification requirement 
for highly qualified special educators such 
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as the petitioner, "more American teachers will have ... employment opportunities" because 
standards will be met and schools will not be abolished. However , neither the Immigration and 
Nationality Act nor the NCLBA, create or imply any blanket waiver for highly qualified foreign 
teachers. users 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 that would justify 
a waiver of the job offer requirement which, by law, normally attaches to the visa classification 
sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that her influence be national in scope. See 
NYSDOT, 22 I&N Dec. 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. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende at 128. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.