dismissed EB-2 NIW Case: Special Education

(b)(6)
U,S.I)epartment of Homeland Security 
u.s. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusett s Ave., N. W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
.Services 
DATE: SEP 1 8 2013 Office: TEXAS SERVICE CENTER Fll.E: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigta~t 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 
~d Nationality Act, 8 U.S.C. § 1153(b)(2) · 
ON BEHALF OF PETITIONER: 
INSTRtJC';tiONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
Tbis 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 ~ motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Foriil I ~290B) 
within 33 days of the date of tl:tis decision. Please review the Form I-290B illStru~tions at 
http:~~ww.uscis.gov/forms for the latest infonrt~tion on fee, :fjling location, and other requirements. 
S(?e aJso 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
llbUJJ~ r Ron Rosenberg 
1, Acting Chief, Administra.tive Appeals Office 
(b)(6) NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the iinmigrartt visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. the appeal will be 
dismissed. 
The petitioner s.eekS classification under section 203(b)0) of the Immigration and Nationality Act (the 
A~t), 8 U,S.C. § 11S3(b)(2), as a member of the professions holding an advanced degree. Accordmg to 
Part 6 of the Form I-140, the petitioner seeks employment as an "Elementary Special Education 
Teacher'' for l The petitione~ has worked for 
sipce 2007. At . e time of filing, the petitiOner was teacnmg at 
_ The petition.er ~sserts that an exemption from the requirement of a job offer, and thus of ~ 
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 bas not establlshed that an exemption from the requirement of ajob offer would be in the 
national interest oftheUnited St~tes. 
Qn ~ppe~, the petitioner submits a brief from col.lnsel. 
Section 203(b) of the Act states, in pertinent ,part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degtees or AlienS of 
Exceptional Ab~ity. -
(A) In General. - Vis~s shall be made available ... to qualified immigrants who ate 
members of the professions holding a<lvanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will S1lbst_ant1ally 
benefit prosp~Hvely the national economy, cultural or educational interests, or welfare 
of the United States, and whose services i11 the sciences, arts, professions, or business 
are sought by an employer in the United 
States. 
(6) 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. 
servi~s in the §ciences, arts, professions, ot business be sought by an employer 
in the Up.jted States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a, waiver of 
the job offer requirement, and thus a l~bor c:ertification, is in the national Interest. 
Neither the sta~te nor the pertinent regulations defme the term "national interest." Ad<litionally, 
Congress did not provide a specific defmition 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 inter~st by 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
increasing the number and proportion of visas for in:lmigrants who would benefit the United States 
~onomica1ly and otherwise ... .'; S. Rep. ~o. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary infofination to regulatiop.s implementing the Immigration Act of 1990, published ~t 
56~Fed. Reg . . 60897,60900 (November 29, 1991), states: 
The Service [now ·u.s. (:itizen.sbip and Immigration Services (USCIS)] believes it 
appropriate to leave the application ofthis test -~ flexiole as possible, although clearly 
an alien seeking to meet the [national intere·st] standard must make a · showing 
significarttly 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 establi_sh th~1J exempdon from, or waiver of, the job offer will oe in the 
national interest. Each case is to be j11dged on its own merits. 
In te New Yotk State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217,.18 (Act. Assoc. 
Comm'r 1998), has.set forth several factors whiGh must be considered when evaluating a request for a 
Mtional interest waiver.. First, the petitioner must .show that t;he alien seeks employment in an area of 
substanthll in.t:rmsic merit. Next, the· petitioner must show that the proposecl benefit wiU 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 ~vailal>le Ullited States worker having the same ininiinum 
qualifications. 
While the national interest waiver hinges on prospective nationai benefit, the petitioner must establish 
th~1t the alien's past record justifies projections of future benefit to the national ir)tere.st. The petitioner's 
subjective assurance th~1l the aiien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term ''prospective'' is to require future 
COIJtiiPl!tions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements; ancl whose benefit to the national interest would thus be entirely speculative, 
The USCIS regulation at 8 C.P.R. § 204,5(lc)(2) defliJ.es "exceptional ability'; as ''a degree of 
expertise significantly above that ordinarily encountered" in a given a,re;:t ofendeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certificatioJ1 requirement; 
they ate not exempt by virtue of their exceptional ability. Therefore, Whether a given alien see.~~ 
classification as art 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 
sjguificantly above that ordinarily encountered in his or her field of expertise. · 
The petitioner has established that her 
work as a special educator is in an area of substantial intrinsic 
merit. It remains, then, to determine Whether the proposed benefits of the petitioner; s work would 
be national in scope and whether she will benefit the national interest to a greater extent than an 
available U.S. wotket with the same minimum qualifications. 
(b)(6) NON-PRECEDENT DECISION 
Page4 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a IJ.a.tional interest waiver. /d. a:t 220. Mor~over, it cannot suffice to state that 
th,e alien possesses useful skills, or a "unique background." Special or unl,lsu.al knowledge or 
training does not inherently me.et the national int~rest threshold. The issue of whether simila.rly­
trained workers are av~il~ble in the United States is an issue under the jurisdiction of the Department 
of Labor. /d. at 221. 
The petitioner filed. the Form I-140 petition on June 4, 2012.. In Part 4 of the Foim I-140, the 
petitioner answered "yes" to whether any petitions had previously been filed 011 ber behalf. the 
record reflects that filed a Form I-140 petiti()n, with an approved labor certificatiOJ:l, on her 
behalf on June 30, Z009, to classify her a:s a professionall.lllder section 203(b)(3)(A)(ii) of the Act. 
the Texas Service Center approved the petition on July 9, 2009, with a priority date of iuly 28, 
2008. 
In · a May 30, 2012 letter accompanying the petition, counsel stated that the petitioner merits the 
11ational interest waiver due to "her Master's Degree in Special Education and more than twe11ty (20) 
yeats of . . . progressive teaching experience." ·Academic degrees and experience are elements that 
can contribute toward a finding of exceptional ability. See 8 C.P.R. § 204,5(k)(3)(ii)(A) and (B), 
respectively. .Exceptional ability, in t.urn. i.s not self-evident grounds for the waiver. See section 
203(b)(2)(A) of the Act. 
The petition included "Personal Statero.~11t" signed by the petitioner, discussing her background, 
career, and tea.c.hing style. The petitioner stated: 
I am presently teaching special education students in • ·promoting hands on 
experiences in exploring and discovering ideas that could be retained in their minds in order 
for them to apply the things they learned i,n their daily lives. I make them aware too of how 
diverse O'QT environment is and encourage them how to show respect one ' s culture and raCe 
in promoting harmony and progress iil the economy. My dedication, experience, and 
kfiowledge is an enormous share to the continuous quest of this first class nation to advance, 
to transform Uves in order to improve the educational achievement of the students. 
Encou.taging students to use their full potential and be successful individl,lals are the things 
that [the petitioner] have [sic] been working on and wish to give. · 
From the things mentioned, I would like to express my strong desire to avail a petmanent 
residency here in the United States of America. 
Regarding the petitioner's "strong desire to ava.il a permanent residency here in the United States of 
America," the petjti011er was already the beneficiary of an approved immigrant -petition almost three 
years before the filiilg date of the present petition. Therefore, the issue in the present petition is 
· whether she quaJifi.es. for a higher classification than the one already granted to her. Approval of a 
second petition would not guarantee approval of an adjustment application. The a.pprovl:!,l of a visa 
(b)(6) NON-PRECEDENT DECISiON 
Page5 
petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a 
preliminary step in the visa application process. The beneficiary is not, by mere approval of the 
petition, entitled to art immigrant visa, Matter of Ho, 19 I&N Dec. 582, 589 (BlA 1988). 
In her statement, the petitioner did not mention the NYSDOT guidelines or explain how she meets 
them. The petitioner expressed general goals such as "promoting harmony ®d progress in the 
econollly'' and improving "the educational achievement -of the students," but the record rdoes not 
show how the pet.itioner; s work would impact the field beyond '·· Wlth regard .to the 
petitioner's special education teaching duties, there is no evidence establishing tha.t the benefits of 
her work would extend beyond her Student.s at such that they might have a 
national impact. NYSDOT, 22 I&N Dec. a:t 217, n3. provides examples of employment where the 
benefits would not be national in scope: 
For iiJ.st@ce, 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 n.a.tional 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 cot1ld not 
be considered sufficiently in the national interest for pl,lrposes of this proVision of the Act. 
In the present matter, the benefits of the petitioner's impact as a special educator would be limited to 
stt1delltS at her school and, therefore, so attenua.ted at the national level as to be negligible. In 
addition, the record lacks specific examples of how the petitioner's work as a teacher has influenced 
the education field on a national level. · 
The petitioner submitted various letters of support di.sct~ssing the petitioner's work as a spe.cial 
educatioll teacher. Selected examples will be discus sec) to illustrate the nature of the references' 
claims. 
, stated: 
[The petitioner] is an extraordinary member of our instructional team and makes a significant 
impact on stucie.nt achievement on a daily basis. ··· 
As a Special Educator, [the petitioner] uses her instructiomil expertise to modify the 
curriCulum to meet the unique learning needs of her students. She serves a.s a valuable 
resource to general educators and helps support them in their use of differen6a.ted 
instructional strategies. [The petitioner] actiyely communicates with parents and forths close 
relationships with her students. [The petitioner] fulfills all professional responsibilities and 
exceeds expectations. 
(b)(6) NON-PRECEDENT DECISION 
Page6 
[The petitioner] h~s been with since 2007 and has 
taught students in Kindergarten and First Grade with ADHD, ADD, Speech Defects, Autism 
and Developmental Delay. r 
coinrilents on the petitioner's work as a special educator at . within 
the ~ystero, but fails to provide specific ex$1ples of how the petitioner's work 
has influenced the field a$ a whole. At issue is whether this petitioner's contributions in the field· are 
of such unusual significance that the petitioner rnerits the special benefit of a national interest 
waiver, oyer w.d ~hove 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. NYSDOT at 219, n. 6. 
, stated: 
[Tb.e petitioner] has been teaching at since August 2007. [The 
petitioner] is currently a kindergarten special education teacher who works with students with 
deVelopmental delay; ADHD, behavioral problems, and autism. For the past four years, she 
was a teacher for students with autism who was responsible for teaching ~11 a~~dem,ic 
subjects. In addition, [the petitioner] is responsible for modifying grade level instruction 
based on her students' IEP [Individualized Educ~tion Plan] goals and objectives. [The 
petitioner] i_Illplements lessons which provide for instruction at students' varying 
petfoililance levels wl:lile still following our count)" s cutriculum framework pacing progress 
guides. In her classroom, she m~imizes the use of time for instructional purposes, with all 
students being involved in meaningfulle~jng activities. [the petitioner] uses a wide range 
of ~ssessment information, including teacher observ~tions, student work, running records, 
and stand.~dized test data, to regularly adjust student instruction. 
[The petitioner's] classroom is warm and inviting, and her student~ always display positive 
attitudes about learning and themselves.. Fairness and consistency describe the way [the 
petitioner] deals with disciplinary rn~tters in her classroom. She actively partiCipates in 
grade level plaooing meetings, school improvement team meetings, 1111dti-disdplinary team 
meetip.g~. and school events and activities. She works cooper~tively with administration, 
teachers, speci_~ education teachers, and English as a Second Language teachers, as well as 
patents, studentS; and other school staff members. 
[The petitioner] a.lso demonstrates excellent professionalism. She is punctual every day and. 
dresses in a professional manner. She balances the duties of her work day effectively and ha$ 
a genuine upbeat attitude. She has received satisfactory eva.luations and observations during 
her entire tenure at [The petitioner] displays a strong personal 
comrnitm.ep,t to the art of teaching and is a wonderful asset to our school staff. 
The paragraphs quoted above in the January 23, 2012letterfrom are ideiJ.tic;:~J to those in a 
Ma.rch 18, 2012 letter froin ...1· The identical 
paragraphs in their letters suggest the language in at least one of the letters is not the author's own. 
Cf Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cit. 2006) (upholding an 
(b)(6) NON-PRECEDENT DECISION 
Page7 
immigration judge's adverse credibility determination in asylum proceedings based in part on the 
simiJ~ty of some of the affidavits}; Mei Cha.i Ye v. U.S. Dept. of Justice, 489 F.3d 517,519 (2d Cir. 
2007) (concluding that an immigration judge may reasonably infer that when an asylum applicant 
submits strikingly similar affidavits, the applicant is the coiilrilort source). · 
While it is aclmowledged that and have provided their support to this petition, 
it appears that atleast .one of them di<l not independently prepare the full content of his or her letter. 
ill evaluating the evidence, the truth is to be determined not by the quantity of evidence alone bu.t by 
its qu;11ity, Set! Ma_tter .ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). In addition, USCIS may, 
in its discretion, use as a..dvisory opinions statements subrp.itted as expert testimony. See Matter of 
Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS js 11.ltimately 
resp<msible for making the fmal determination rega..rdi.o.g an alien's eligibility for the. benefit 
sought. /d. Based on the identical paragraphs l and letters, lJSCIS .may ac.cord 
them less weight. Regardless, neitber of the assistant prinCipals' letters demonstrates that the 
petitioner's work has impa~ted the field beyond 
stated: 
t have had the pleasure of [the petition,er] as my sort's Kindergarten teacher during 2010 -
:fOll in - · - . . My son was very co!Jlfortable with her. I have seen her 
engaging the students with effective hands on materials to roaster concepts m math while I 
was observing the class. 
S]Je is an excellent teacher loved by her st\ldents. She has taught first and Kindergarten 
· st\ldelJ.ts with autism, speech defects, ADHD, and developmental delay. She has been taking 
care of tbe challeo.ging situations with patience and hard wor~. 
1 hope that [the petitioner] . would be ;1ble to continue to offer her services in the coming 
years, so tb_a..t the students in would continue to benefit from her 
knowledge at1,d experience. 
speaks highly of the petitioner;s interactions with 
k.,indergarten and first grade students, and her comments demonstrate that the petitioner Works in an 
a.rea of substantial intrinsic merit. However, comments do not indiCate that the 
petitioner's work );las influenced the field as whole, or that the petitioner bas or will benefit the 
United States to a greater extent than other qualified special education teachers. 
, Educational Autism Specialist, stated: 
[The petitioner] has worked in our county's autism program since the2007 ... 2008 school year. 
In that time, she has worked with children who have autism, Asperger's, ADD, ADHD, and 
other speech i1llpairments. [The petitioner] has shown remarkable work e¢ic, kindness artd 
wiliness [sic] to adapt to change. [The petitioner] has attended various trainings on A_SD an,d 
(b)(6) NON-PRECEDENT DECISION 
Pa,ge8 
has always been an active participant. I have found that [the petitioner] will actively seek 
infotrna:tion to help m.~e her cl~s stronger . This is a huge strength for her. Her kindness 
and enthusiasm made her 311 asset to 
cori1Ipents oil tl.le petitioner ; s work experience, training, and effective teaching skills in 
m_e autism program, but sbe fails to· provide specific examples of bow t:be petitioner's work . 
bas iJ::Jflp,enGed the field as a whole. As previously discussed, it cannot suffice to state tbat tl:J.e alien 
possesses useful skills, or a '\mique background." .Regardless of the alien's partiCUlar experience or 
sldi1s, even assurtiiilg they ate unique, tl_le beneqt the alien's skills or backgrmmd will provide to the 
United St.~te~ must also considerably outweigh the llherent national interest in protecting U.S. workers 
through the labor certification process. NYSDOT at 221. 
stated: 
[The petitione.r' s] kp.owledge of students with autism is to be commended. She continues to 
help the StUdents feel at ease and continuously builds their self-esteem along with the parents. 
She has excellent interactive skills with the parerits which can be trying at tim,~s be~ause of 
tbe st.ydents' special needs. The state of l in particu.la.r. 
is in dire need for Special Education teachers, especia,lly ones like the petitioner. . . . 
would be at a, loss without the services of [the petitioner] . 
a,_sserted that the state of _ ate "in dire need for 
Speeial Education teachers," but assuming the petitioner's teaching· ~kills" and experience ate lliliqu ~ , 
the classification Sought was not desigtied merely to alleviate skill shortages i1J. a given field. In fact, 
th.a,t issue properly falls ilhder the jurisdict.iov of the Department of Labor through the alien 
employment certification process. /d. at 221. 
,-stated: 
[The petitioner] has worked with since the beginning 
of the 2007 - 2008 school year. At I have seen her work as a special educator in 
the Eletnentru.:y Autism Program, for which I am t,he Department Chair, as both a 
kindergarten and first grade teacher. [The petitioner] has clearly demonstrated high levels of 
patience , dediCation, reliability, and an interest in further developi):lg her repertoire of 
strategies, and techniques to work with children with special needs. . 
While the population which our program serves has primary educational d.isal:>il.ities of 
autis·ro, they often have other disabilities in addition to the autism. This requites our teachers 
to have a broad reaching skill set to address a broad range of educational, soCial, and 
behavioral needs. 
In addition, a teacher in our program must have excellent time management skills in order to 
juggle the varying needs of our students. . . . In addition to significantly modifying the · 
(b)(6) NON-PRECEDENT DECISION 
Page9 
general education curricululll so these students can achieve academically, [the petitioner] also 
delivers directed social skills lessons. 
comments o~ the petitioner's work as a special educator in the Elementary Autism 
Program at bitt does not indicate how the petitioner 's jmpact or 
influence 13,s a teacher is national ii1 scope. 
, Special Education Teacher, . ; stated: 
I have known [the petitionerl since year 2007 when we worked together as first grade special 
education teachers in • ___ .. ____ -- ---- -----..-...--
. . . . She attends professional trainings because she likes 
acquiring strategieS as well as insights on how ·children learns and how she can be more 
efficie1.1t-and be an effective teacher to special childre11. She teaches them songs and actions 
to enable them to remember concepts she taught them.. She prepares her lessons including a 
lot of manipul13,tive in order for the students [to] get a concrete e.~perience for the abstract 
concepts she introduced to therrl. . . . She makes bulletin boatd displays and anchor charts 
that serve as a resoUrce for the students to refer to whenever there is a need for recall since 
our students have deficits in memory, She does her work accurately with dedication, 
assessing e11ch child thoroughly to show a vivid reptesentatiop of the present leyel of each 
child so she will be able to develop a well-organized IndiVidualized Educational Program for 
each child she is assigned as the case manager. She is very professional in her interactions 
not only witli the students but with colleagues, administrators and parents as well. 
discusses the petitioner's activities as a special educator and expresses admiratio11 for 
the petitioner's teaching techniques, but comments do not set the petitioner apart from 
other competent and qualified teachers, or explaiq. how the petitioner's work has impacted the field 
beyond her school. 
, Occupational Therapist, stated: 
I have worked with [the petitioner] for four years in the 
She is a teacher who has worked for that entire ti:rne with a specialized program for 
child,ren with Autism Spectrum Disorder. She has been both a kindergarten teacher and a 
first grade teacher in small self-contained classrooms for children on this spectrum. She also 
accompanied h_er stud,ents [into] the general education classrooms when that w~ appropriate. 
She is familiar with the IEP process and has managed that process for her students. 
[The petitioner] has been unfailingly kind and loving to her students and to her school peers. 
She has been proactive in advocating for her students and in working hard for them. She is 
flexible and dedicated to her job. As an Occupational therapist consulting with her on 
behalf of her students she has been open to trying a variety of new Sensory Regulation 
techniques, a,nd eq:ually open to suggestions for modifying educational methods to suit the 
needs of individual students. · 
(b)(6) NON-PRECEDENT DECISION . 
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comii1ents on the petitioner's teaching experience with autism students, and praises the 
petitioner's concern for her students and openness to suggestions, but J fa:ils to provide 
specific examples of how the petitioner's work has influenced the field as a whole 
.__ ___ __. Special Education Instructor, stated: 
I have co-t~1,1ghl classes with [the petitioner] in the Special Education program at 
; ·She is a real team player and always has the best interests of her st1,1dents, and the 
school at large, a:t heart. She is a corU'ident instructor and manages the classroom well. She, 
appropriately, commands respect, but is genuinely caring and interested in each of the 
stl,ldents. Throughout the years [the petitioner] continued to develop a progressive approach 
towa:rds te~ching students with special needs, and has become very proficient at planning and 
teaching developmentally appropriate, hands-on, lessons. [The petitioner] collaborates with 
other educators to design and impleme~t a series of lessons aimed at helping students with 
disabilities access the general education Cl!rriculum so that they may participate fully during 
the school day. · · 
comments on the petitioner's teaching skills and activities at but 
does not indicate that the petitioner's work has had, or will continue to have, an impact 
beyond the students under her tutelage and the local school that employed her. 
stated: 
[The petitioner] has been a Special Educator in out building since 2007. . 
. . As a Special 
Education teacher she has been working with many students in diverse settings. [The 
petitioner] works with students with Autism, ADHD, ADD, speech delays, a:nd 
deveiopmental delays. She is professional in her demeanor, kind, and sensitive with oUr 
stl,ldepJ students. She is hard working and fit in well with our students, staff, and teachers. 
While describes the petitioner as a professional, kind, sensitive, and h~d-workin.g 
teacher at comments do not set the petitioner apart from other 
competent and qualified special education teachers, or explain how the petitioner's work has 
impa~ted the field beyond her school. 
6th/7th Grade Reading, English and Language Arts Teacher, 
stated: 
She is employed as a Special Education Teacher in Kindergarten and First Grade ~t 
Her duties include instruction within the Autism Program. The students she 
instructs include disabilities that include but are not limited to ADHD, ADD, 
developmentally delayed, and speech deficiencies. 
(b)(6) NON-PRECEDENT DECISION 
PMe 11 
I directly observed [the petitioner] two years .ago when I was serving as the primary grade 
level Reading Speci~list. I was impressed at the interactive instructional abilities displayed 
by [the petitioner]. She maintains (U1 instructional environment conducive to learniP.g given 
t:h~ limited abilities of her students. Sh~ provides a nurturing learning enviroilrtlertt where 
students ~e cb.~llenged and willing to learn. She is a positive asset to the educational field. 
[the petitioner] works well with staff, parents, students, and administration. · 
[The petitioner] possesses outstanding ~istic abilities. She enhances the presentation of 
les~on~ with visual support. This creative ability is a positive asset for all that are exposed to 
her irtstructiop.. [Th~ petitioner] is a positive asset to our staff. 
discusses the petitioner's work as ~ special educator at and praises 
the petitioner's teac:hing ~bilities, but fails to provide specific examples of how the 
petitioner's work has influenced t:he field as a whole. 
- School Psychologist assigned to t:he from August 2009 
- Hme 2011, stated: 
As a member of the Autism Program staff, [the petitioner] works specifically with children ip. 
t;be elet:nentary grades who ate diagnosed al) bei_ng 011 the Autism Spectrum (moderate to high 
functioning). ·[The petitioner] works with the children in.dividualiy as well as within small . 
groups in the .Autism classroom in order to reinforce the gener~l skills being taught in the 
general education classroom, (including social skills, math, reading ~d wdting). In addition, 
she attends the general education cl~ssroom with the children in order to provide support to 
help them be successful in the general classroom setting. 
I have worked with. [tl).e petitioner] within the scope of IEP meeti11gs and functional 
. Behavior Assessment!Behavior Implementation Plan meetings in order to provide . 
appropriate special education prograrnro.illg. Based on · my work with her, she works well 
with the children, parents and other staff members (Uld it appears that the students enjoy 
working with her as well. · 
comments on the petitioner's activities as a member of the Autism Program staff at 
, but does not explain how the petitioner's impact or influence as a 
special education teacher is natioiml in scope. 
School Counselor, , stated: 
I have worked with [the petitioner] for the past 7 months as a professional colleague ~t 
. . . [The petitioner] works with First (Uld Kindergarten studertts with 
autism, developmental delay, ADHD/ADD and speech defects. 
Durj.rig the time 1 have known' [the petitioner], she has always been friendly, courteous and 
helpful in her interactions with students, parents and colleagues. [The petitioner] is a very 
(b)(6)
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NON-PRECEDENT DECISION 
Page 12 
vital asset to in the direct services she px:ovides to the Special Education 
Department and the 
students with specific learning disabilities. 
While describes the petitioner as friendly, courteous, helpful, and "a very Vital asset to 
comments do not ,indicate that the petitioner; s work has 
inflm:~nced 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. · 
, Resident Ombudsman, ----stated: 
[The petitioner] eamkd her Bachelor in Elementary Education with Honor.s on February i5, 
1991 from ~ She passed the Board for 
Professional teachers administered by the 
She started working ~s a Private School Teacher at 
immediately after her graduation from college in 
Then she transferred to then in 199Z 
up to 199~ located in In 1993, she moved to 
also in the s~e city up to 1997. Also in the same year, she st~rted working as a Public 
School Teacher in 
up to 2003. She left the Philippines and taught at the 
. U.S.A. in September 2003. At present, she is working ~sa· 
,U.S.A. 
I know [the petitioner] as a diligentand a very hardworking Teacher. While working as a 
P\lblic School Teacher, she managed to finish her Masteral Degree in Special Educ·ation ~t 
the with honors. 
comments on the petitioner's educational background ~d teaching experience~ 
However, any objectiVe qualifications which are necessary for the performance of the occupation can be 
~iculated in an application for alien labor certific~tion. NYSDOT at 220-221. f~ils 
to provide specific examples of how the petitioner's work as a teacher has influenced the field as a 
whole. While tbe etitioner submitted documentation indicating that she presented a research project 
. entitled ' 
in October 1999, 
there is no docuroe,n~llf'Y evidence showing that her methodologies were implemented by substantial 
number of schools, were frequently cited by independent educational scholars, or otherwise notably 
influenced the field. 
The preceding references praise the petitioner's teaching abilities and personal character, blJ.t they 
did not demonstrate that the petitioner's Work has had an imp~ct or influence outside of the schools 
(b)(6) NON-PRECEDENT DECISION 
Page 13 
where she .b~s worked. They did not address the NYSDOT guidelines which, as published .precedent, 
are binding on all USClS employees. See 8 C.P.R. § 103.3(c). Tb.at decision cited school teachers 
as an example of a profession in a field with overall national importance (education), but i.n which 
individ~J.~ workers generally do not produce benefits that are national in scope. NYSDOT at 217, 
n.3. 
The Bocgd of Immigration Appeals (BIA) has held th~t testimony should not be disregarded simply 
be.ca:use it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Pee. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: ''We not only encol!rage, but require the introduction of 
corroborative testimonial and documentary evidence, where available.'' /d. If testimoniaJ 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. 
As previously discussed, USCIS may, in its discretion, use as advisory opW.ons statements 
submitted ;lS expert testimony. See Matter of Caron International, 19 I&N Dec. at 795. However, 
USC IS · is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. /d. The submission of letters of support from the petitioner's perSonal 
con.tlicts is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 
I&N Dec. 500, n.2 (BIA ,2008) (noting that expert opinion testimony does not purport to be evidence 
as to ''fact"). 
The petitioner submitted the following: 
1. A Certificate from for participation in the 
-2. Two certificates of appreciation "for supporting the feeding progtarri" < 
3. A Fel;>t:Uary 26, 2012letter from confirming the petitioner's 
.membership in the church; 
4.. A September 20, 2009 memorandum stating that the petitioner performed community 
service at 
5. A published in the Apri11, 1993 issue of ·that 
identifies the petitioner along with numerous other starting teachers; 
6. Documents indicl:l.ting that the petitioner was awarded 
on February 15, 1991 at her alma mate 
7. A May 2008 "Certificate of Appreciation" from the principal at 
for the petitioner's "dedication to the students" of that school; 
8. A January 28, 2012 Certificate of Excellence from the 
"for sh~g her expertise in ' 
(b)(6)
'· 
NON-PRECEDENT DECISION 
Page 14 
9. An "Outstanding Service" certificate from the 
"for her/his invaluable contribution in giving academic help 
to the students of 
~~ 
in conjunction with its · 
10. A March 9, 2012 "Certificate of R~cognition'' froin the prinCipal at 
in ''recognition of his/her Noble Contributions as the Au,thor and Organizer of 
which has benefited the · Students in the Autism Program at 
11. with a validity period of July 1, 2007- June 30, 2012; 
12. New York City Departmel)t of Education License; 
13. State of New York PUblic School Teacher Certificate; 
14. Profe~sional Teacher Certificate from the l 
15. Certificate frorn tbe stating that the petitioner 
"passed the PROFESSIONAL BOARD EXAMINATION FOR TEACHERS" on 
October 25, 1992; 
16. An August .2. 2010 "Certification of Good Standing" from the 
17. Certificate . of Membership for the 
and 
18. Employment verifications from various schools where the petitioner has' taughL 
Occupational experience, licenses, professional memberships, and recognition for achievements are 
all elements that c:an contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(li)(B), (C), (E) and (F), respectively. As noted previously, exceptional ability in the 
sden<~es, the arts or business is not sufficient to warrant the n:1tional interest waiver. The plain 
langilage of section 203(b )(2)(A) of the Act indicates that aliens of exceptional abiiity are subject to 
the job offer requirement (including alien employment certification). Particularly significant awards 
may serve as evidence of the petitioner's impact ~d influence on her field, but the petitioner has 
failed to demonstrate that the awards she received have more th~ local or institutional significance. 
For instance, the petitioner's ''Class Honors" award from (item 6) reflects 
institutional recognition from her alma mater rather than a nationally Significant award in the field of 
edu,cation. Academic performance, measured by such criteria as grade point average, carmot alone 
satisfy the n:1tional interest threshold or assure substantial prospective national benefit. In all cases 
the petitioner must demonstrate specific . prior achievements that establish the alien's ability to 
benefit the national interest. NYSDOT at 219, n.6. There is no documentary evidence showing that 
items l - 18 · are indicatiVe of the petitioner's influence on the field of special education at the 
national level. 
The petitioner also submitted copies of her "satisfactory" teacher evaluations and classroom 
observations from and New York. The 
petitioner, however, did not submit documentary evidence indicating that she has impacted the field 
to a substa11tilllly greater degree than other similary qualified special education teachers. Moreover, 
(b)(6) NON-PRECEDENT DECISION . 
Page 15 
there is no evidence sb.owing that the petitioner's specific work has ha:d Significapt impact outside of 
the schools where she has taught. 
In addition, Jhe p~titioner submitted numerous certificates of participCJ.tion and completion for 
training courses and semin(!.fs relating to her professional d~velopmertt. While t(!.king courses and 
attending seminars are ways to increas·e one's professional knowledge and to improve as a teacher, 
there is llothing jnherent in these activities to establish ~ligibility for the national interest waiver. · 
the director issued a request for evidence on September 17, 2012, instructing the petitioner to 
"submit evidepce to establish that [the petitioner's] past record justifies projections of future benefit 
to the nation." 
ln r.espops~, counsel cited the No Child LeftBehind Act (NCLBA) apd other government initiativ~s 
to reform and improve public education. Counsel asserted that section 203(b)(2)(5)(i) of the Act 
does not contain cleat guidance on eligibility for the waiver, and claims that Congress subsequently 
filled that gap with the passage of the NCLBA. Coil,nsel noted that Congress passed the NCLBA 
three years· after the issuance of NYSDOT as a precedent d~cision, and cl~ims 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 elementC!.fY and secondary school education" through such 
legi_sl~tion. Counsel, however, , identified no specific legislative or regulatory provisions that exempt 
school teachers from NYSDOTor reduce its impact on them. 
Cot,Jllsel did not support the assertion that the NCLBA modified or superseded NYSDOT; that 
legislation did not amend section 203(b)(2) of the Act. The UrtSupported assertions of counsel do not 
constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
lAz!,reano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramircz-Sqnchez, 17 I&N Dec.503, 506 (BIA 
1980). In · contr~st, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 
106-95 (November 12, 1999), ~pecifical1y 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, b~t has in fact done so i.n direct 
response to NYSDOT, counsel has not shown that the NCLBA indirectly implies a similar legislative 
change. 
Counsel asserted that the benefit arising from the petitioner's work is national in scope because of 
tb~ ''national priority goal of dosing the achievement gap." The record, however, containS no 
evidence that the petitioner's efforts have significantly closed that gap. Tb.e nat.ionai importance of 
"education" as a concept, or "educators" as a class, does not establish that the work of one teacher 
produces benefits that ate national in scope. See NYSDOT at 217, n.3. A local-scale contribution to 
an ov~rall national ~ffort does not meet the NYSDOT threshold. The aggregate national effect from 
thousands of teachers does not give nation.~l scope to the work of each individual teacher. 
Cotirtsel continued: 
(b)(6) NON-PRECEDENT DECISION 
Page 16 
The national 'priority goal of closing the achievement gaps between minority ~d nonminority 
students, and between disadvantaged and more advantaged children is especially relevant in 
the context of and The 2012 
Reading results show that out of the 24 • 
ranked near the bottom at the 'All Student' level for each -covered grade level , . , . 
* * * 
Additionally, it is noteworthy t:IJ.at the updated 2012 _ Report Ca.rd shows that 
did not meet its Reading proficiency AMO targets .... 
The petitioner has worked for since 2007, and thus had been there for a number of years 
before the administration of the 2012 tests. Counsel did not explain how the 2012 
results for (which indicate low rank.ings relative to oth~r school districts) establish 
that the petitioner has played an effective role in "closing the 
achievement gap." 
Counsel stated th~t t:IJ.e petitioner "is an effective teacher in raising student achievement in STEM" 
(science, technology, engineering and mathematics), but he cited no evidence to support that claim. 
As previously discussed, the un:supported assertions of counsel do not constitute evidence. See Matter 
of Obaigbel)ll, 19 I&N Dec. at 534 n.2 ~ Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramitez­
Sanchez, 17 I&N Dec. ~t 506. In addition, while couns.el asserted that the petitioner has "proven 
success in raising proficiency of her students," he did not point to specific STEM test results or other 
docu,J!l,entary evidence in the record to support the assertion. Regardless, there is no documentation 
demonstrating th~t the petitioner has had an impact or influence outside of 
Counsel a.sse.ned that providing "legal iinmigrant st~tus for 'Highly Qualified Special Education 
Teachers' like [the petitioner] ... will not only help improve the Education in the country but more 
importantly serve as 'key to the nation's economic prosperity."' ~ounsel did not explain how the 
action~ of one teacher would contribute significantly to improving the national educational system or 
the U.S. economy. Congress could have created a blanket waiver for special education teachers, but 
did not do so. Instead, the job offer requirement applies to members of the professions (such as 
public school teachers) and to aliens of exceptional ability (i.e., foreign national workers who show a 
degree of expertise significantly above that ordinarily encountered in a given field). · 
Counsel stated that the labor certification requirement is deficient because, for labor certification 
purposes, the U.S. Department of Labor considers a bachelor's degree, rather than a. IIla.ster's degree 
and ex;perien.ce, to be the minirtu1m educational requirement for a special education teacher. Tbe 
petitioner submitted information from the Occupational Outlook Handbook describing what the U.S. 
Department of Labor considers to be the minimum qualifications necessary to become a special 
education teacher: 
(b)(6) NON-PRECEDENT DECISION 
Page 17 
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 m~jor in elementary education or a. content area, such as m.atb. or chemistry, 
and minot in special education, Others get a degree specifically in special education. 
* * * 
Some states requite special edv.cation 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 teferted to 
as a certification. 
* * * 
Req\lirements for certification vary by state. However, all states require at least a bachelor's 
degree. They al.so 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 wor~ with students 
across a variety of disability categories. Others license different specialties within specilll 
education. 
Tea~hers are often required to ,complete annual professional development classes to keep 
their license, Most ~tates require teachers to pass a background check. Some states r.eqv.ire 
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 
requiremems. 
(b)(6) NON-PRECEDENT DECISION 
Page 18 
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 alt~mative certification 
programs allow candidates to begin teaching immediately, under the close supervision of an 
experienced te~cher. 
Counsel emphasized "the critical timeline" and "time-sensitive obligation" for hiring "Highly 
Qualified Teachers,'" and claimed that the labor certificl:).tion process cannot accommodate this need 
because "[t]he United States Department of Labor miiiii:nuin education requirement for SpeCial 
, Education Teacher isjust a bachelor's degree." 
Seetioii 9101(23) of the NCLBA defines the term "Highly Qualified Te~cher." Briefly, by the 
~tatutory definition, a "Highly Qualified" elementary school teacher: 
• has obtaineq full State certification as a teacher or passed the State teacher licensing 
examination, and holds a licemse to teach in such State; 
• . }Jolds at least a bachelor' s-degree; and 
• has demonstrated, by passing a rigorous State test; subject knowledge and teaching skills 
iii .reading; writing, m~thematics, and other areas of the basic elementary school 
curriculum, or (in the case of experienc~d teachers not "new to the profession") 
demonstrates competence in all the academic s11bjects in which the teacher teaches based 
on a high objective uniform State standard of evaluation, 
Section 9101(23)(A)(ii) of the NCLBA further indicates that a teacher is not "Highly Qualified" if 
he or she has ''had certification or lic~nsu:re requirements waived on an emergency, temporary, or 
provisional basis." 
The petitioner has not established that the "Highly Qualified" standard involves requirements that 
are significantly tnore stringent than those outlined in the Occupational Outlook Handbook, or that a 
public school could not obtain a labor 
certification Jor a "Highly Qualified Teacher.'' Indee4, the 
p~titicmer' s own approved labor certification required her to hold a bachelor's degree in education or 
social stuqies, and to ''have or be immediately eligible for Maryland Teaching Certificate," elements 
consistent with the "Highly Qualified" designation. Thus, the petitioner' s level of education and 
experience ate not required for "highly qualified" status urtder the NCLBA. Counsel, therefore, did 
not support the claim that the labor certification process frustrates the NCLBA's mandate for schools 
tO employ "highly .qualified teachers." 
Counsel stated that a 
waiver would ultimately serve the interests of Unit~d States teachers, because if 
schools "fail to meet the high standard required under the No Child Left Behind (NCLB) Ut,w," the 
result would be "J).ot only . . . closure of these schools b"Qt [also] loss of work for those working in 
those schools." Counsel does not document "closure of ... schools" for fa_iling to meet NCLBA 
requirements, and the record does not show that the petitioner's work has brought schools 
. closer to meeting tbe NCLBA requirements. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
Counsel fUrther stated: 
[The petitioner] is firmly committed to teaching at , However, is currently 
hatred for a two-year period ... from filing any employment-based imriligrant and/or 
nonimmigrant petition pursuant to the terms of a settlement agreement it had entered into 
with the United States Department of Labor arising from willfid violations of the 
H-lB regulations at 20 C.F.R. Part 655, subparts H and I. 
The U.S. Department of Labor invoked the debarment provisions of section 212(n)(2)(C)(i) of the 
Act against owing to certain immigration violations by that employer. As a result, betWeen 
, USCIS cannot approve any employment-based i~igrant or 
nonimmigrant petitions filed by 1 This debannent llleMs that is, temporarily, unable 
to file i.ts own petition on the alien's behalf for a classification other than the one for which she was 
already approved, and thus explains why labor certification is not an option in the short term. The 
inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause fot a 
national interest waiver; the petitioner still must demonstrate that the alien will serve the national 
interest to a substantially greater degree than do others in the same field. NYSDOT at 218, n,5. Any 
waiver must rest on the petitioner'·s individual qualific;;ttions, rather than on the circumstances that 
(temporarily) prevent from filing a petition oil her behalf. 
Counsel stated that another teacher received a national interest waiver, and asked that the 
presen.t petition "be treated in the same light." Each petition filing is a separate proceeding with a 
separate recorq. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contaiued i_n the record of proceeding. See 8 C.ER. § 103.2(b)(16)(ii). 
While AAO precedent decisions are binding on all USCIS employees in the administration of the 
Act, \U)p\lblished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). 
FUrthermore, counsel provided no evidence to establish that the facts of the instant petition are 
similar to those in the unpublished decision. Witbout such evidence, the assertion that both cases 
merit the same outcome is unwarranted. The only smted similarity is that the beneficiary of the 
approved petition is ''also a teacher in System." 
The petitioner Submitted a duplicate of first letter bearing a new date of November 28; 
2012; a Certificate with a validity period from July 1, 2012- June :30, 2017; and 
the JuJy 9, 2009 "Approval Notice'' for the Form 1-140 petition filed on the petitioner's behalf 
seeking to classify her as a professional under section 203(b)(3)(A)(ii) of the Act, but none of these 
documents demonstrates the petitioner's eligibility for a national interest waiver. 
In addition, the petitioner submitted public school progress reports fdr and 
; 2012 Reading results for . and 
~­
schools; President George H.W. Bush's "Remarks on Signing the ln:lrnigration Act of 
1 The list of debarred an.d disqualified employers is available on the U.S. Department of Labor's website. See 
http://www.dol.gov/whd/itluriigration!HlBDebarment.htm, accessed on July 22, 2013, copy incorporated into the recotq 
of proceeding. 
(b)(6)
( -
NON-PRECEDENTDECISION 
Page 20 
information about PUblic Law 94-142; a copy the Supreme Court decision in Brown v. Board of 
E_du,cqtion, 347 U.S. 483 (1954); a Copy of Section 1119 of the NCLBA; a statem~nt 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 entitl~d "Shortage of 
Sp~cial Education Teachers Includes Their Teachers"; an article entitled "STEM Sell: Are MCith and 
Science Really More Important Than Other Subjects?"; "Bara<* Obama on Education" questions 
and answers posted at www.ontheissues.org; information about STEM fields pri.Jlted from the online 
encyGlQpedia Wikipedia; an article entitled "Special Education Teacher Retention and Attrition: A 
Critical Analysis of the Literature;'; an abstract for a report entitled ''SPeNSE: Study of Personnel 
Needs in Special Education"; an article in the Wall Street Journal entitled "The Importance of Math 
&.. Science · in Education"; an article in Computer Science Technology entitled "lmportance of 
SCience and M(lth Education"; and the written testimony of Microsoft's Bill Gates before the 
Committee on Science a.nd Technology of the United States House of Representatives (March 12, 
2008). As previously discussed, ge11,eral arguments or information regarding the importance of a 
g~ven fi.eld of endeavor, or the urgency of an issue facing the United States, cannot by themselves 
¢stablish that an individual alien benefits the national interest by virtue of engaging in the field. 
NYSDOT at 217. Such . assertions and information address only the "substantial intririsic merit" 
prong of NYSDOT s national interest test. None of the preceding documents demonstrate that the 
petitioner's specific work as a special educator has influenced the field as a whole. 
The director denied the petition on January 9, 2013. The director found that the petition..er failed to 
establi~h tbat an exemption from the requirement of a job offer would be in the national interest of the 
United Stat~s. The director indicated that the petitioner had not shown th(lt her work as a teacher would 
be national in scope. · In addition, t:he director stated that the letters of support $Ubmitted by the 
petition..~r did not show that she "has influenced the field" or ''will present a significant benefit to the 
field>' 
On appeal, counsel asserts that "USCIS erred in giving insufficient weight to tb,e na.t.iorn,tl 
educational ipterests enunciated in the No Child Left Behin..<J Act of 2001 as the guiding principle 
rather than t}le pre<;edent case" NYSDOT. Counsel, however, does not point to any specific 
legislati ·ve or regulatory provisions in the NCLBA that exempt foreigt:I s<,>hool teachers from 
NYSDOT or reduce its impact on them. It is within Congress's power to est:ablisb, a bla.nlcet waiver 
for teachers, ''highly qualified" or otherwise, but contrary to counsel's assertions, that waiver does 
not yet ~xist. 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 further states: 
With respect to the E21 visa cl(lssification, INA§ 203(b)(2)(A) provides in relevant part that: 
"Visa,s shall be made available ... to qualified ill1l1)igrants who are member'S of the professiom 
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 ... edu~tionm 
(b)(6) NON-PRECEDENT DECISION 
Plige 21 
interests, . . . of the United States, and whose services in the sciences, a.rts, professions, or 
business are sought by an employer in the United States. 
Cotihsel, 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 iri the United States." Counsel bas, thus, directly quoted the statute that 
supports · tbe director's conclusion. By the plain language of the statute that counsel quotes oil 
appeal, an alien: profession~ holding an advanced degree is presumptively subject to the job offer 
requirement, even if that alien "will substMtiaJly benefit prospectively the national ... educational 
interests .•. of tbe United States." Neither the Immigration and Nationality Act nor the NCLBA, 
separately or in combination, create or imply any blanket waiVer for foreign teachers,, 
· CoMsel states tbat the director's ''decision did not 
present even one comparative candidate having at 
least the equivalent accomplishment as that of [the petitioner] to support its determination.'' 
Counsel's assertion tests on the incorrect assumption that the NYSDOT guidelines amount to an 
item-by-item comparison of an alien's credentials with those of qualified United States workers. 
The key provision, however, is that the petitioner must establish a record of infll!ence on the field as 
· a whole. There is . no provision in the ·statute, regulations, or NYSDOT requiting the director to 
specifically identify other equally qualified special educators, In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the illlil1igtation benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; MatterofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Counsel asserts that the director "erred in disregarding evidence demonstrating the national scope of 
the petitioner's propo.sed benefit through her effective tole in serving the nat.iop.al educational 
interest of closing the achievement gap." The overall importance of closing the achievement gap 
between minority and nonminority students does not imply that any one teacher will play a 
nationally significant role by educating her students in subject areas where perfor;rnance deficiencies 
exist. Again, general arguments regarding the importance of a given field of endeavor, or the 
wgency of an issue facing the United States, address only the "substantial intrinsic inerit" prong of 
NYSJJOTs national interest test. NYSDOTat 217. Regardless , as previ01.1sly discussed, there is n:o 
documentary evide11ce showing that the petitioner has played an effective role in "closing the 
achievement gap" in or nationally. 
As eviqence of the petitioner's "past history of achievement," counsel points to the petitioner's 
graduate research project' entitled _ · 
As previously discussed, there is no docqmentary 
evidence showing that petitioner's methodologies were implemented by a substantial number of 
scb.QOls, were frequently cited by independent educational scholars, or otherwise notably iilflueilced 
the field. Counsel also ooints to the oetitioner' s "Certificate of Recognition" from her prjncipal for 
''contributions as the 
' the 
petitioner's "Certificate of Ex.ceUence" from the 
~for· sharing her expertise in ' 
------------------------------~ 
(b)(6) NON-PRECEDENT DECISION 
Page 22 
the petitioner'~ "Outstanding Service" certificate from the 
or her "contribution in giving acaaerrnc ne1p w me 
students of in conjunction . 
with its Year 2011 - 2012," and the petitioner's "Certificate of 
Appreciation" from the principal at . _ for the petitioner's ''dedication to the 
stUdents" of th~t school. The preceding awards are lo<*\lm nature or limited geographically to tb.e 
state of ., and do not s}:low that the petitioner has had a wider impact on the field of special 
ed.tJ.c~tion. There is no documentary evidence demonstrating that any of the award,s received by the 
petitioner are naJional in scope and indicative of her influence on the field as a whole. 
In addition, counsel points to the April 1, 1993 that 
identifies tb:e petitioner along with numerous other startin2: teachers and documents iAdic~tin that 
the petitioner wa.~ aw~ded "Class Honors" at the --- ~ ~ _ 
As previously discussed, none of this document~:ttion is suffiCient to 
de.moQ_strate the petitioner's iilfluence on the field of' special education at the national level. Counsel 
also noints to the oetitioner' s "satisfactory" rating~ and classroom observations from 
• New York, but there is no documentary evidence 
showi.t_lg th:at the petitioner's specific work has had significant impact outside of the s~hools where 
she taught or that her work has influenced the field to a substantially greater degree than that of other 
special educators. · 
Couns.el contend~ that factors such as "the 'Privacy Act' protecting private indiViduals" make it 
''impossible" to compare t:he petitioner with other qualified worker~. Once again, coUilsel' s 
Gontention rests on the incorrect assumption that the NYSfJOT guidelines amount to crn. item-by-item 
comparisol! of an alien's credentials With those of qu_al~fied United States workers. The perti.nent 
eligibility factor ~et forth in NYSDOt, however, is that the petitioner rou,st demonstrate a record of 
influence on the field as a whole. Such ~ requirement does not necessitate a review of other special 
edUC~:ttion teachers' credentials. 
Counsel claims th.at "the Immigration Service is requiring more from the beneficiary's credentials 
and \ tantamountto 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 t;hreshold :for 
exc_eptiomtl abil~ty is separate from the threshold for the n~tional interest waiver. It remains th.at tlje 
petitioner's evidence does not facially establish eligibility for the n~tional 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 
infl:uen._ce beyond the school system that employed her. 
CoUJ).sel states that the labor certification guidelines "require onl )' a bachelor's ciegree,'' and 
therefore "rn~y v.ot meet .the objective of employers to hire highly qualified teachers pursuant to No 
Child Left Behind." On page 14 of the appellate brief, however, counsel acknowledges that the 
. st~tl)tory definition of a ''Highly Qualified Teacher" requires only a bachelor's degree. Counsel does 
not reconcile these contradictory claims. ·· ·· 
(b)(6) NON-PRECEDENT DECISION 
Page 23 
Couns~l cites to several studies pointing to a high t1111_1over rate among special education teachers. 
As previously discussed, a shortage of qualified workers in a given field is ail issue · that falls tinder 
the jurisdiction of the Department of Labor through the alien employment certificatio~ process. 
NYSDOT at 221. At best, this information shows that there is a demand for credentialed special 
education teachers, a dem.and that the labor certification process can ~ and, in this instance, did -
address. Counsel, in effect, claims that the petitioner would have difficulty obtaining a benefit that 
she has, in fact, already secured. 
Much of the
1 
appellate brief consists of general statements about educational refotln and disct1ssion 
· of perceived flaws in the labor certification process. The petitioner, however, has not established 
that Congress intended the national interes.t waiver to serve as a blanket waiver for special education 
teachers. tJSCIS grants national interest waivers on a case-by-case basis, rather than establ.ishing 
blanket waivers for entire fields of specialization. /d. at 217. . . 
It is evident from a plain reading of the statute that engaging in a profession (such as teacllil)g) does not 
presumptively exempt such professionals from the requirement of a job offer based ort national interest. 
The petitioner ha.s not established that her past record of achievement is at a level that would justify 
a waiver of the job offer reql!irement which, by law, normally attaches to the visa classification 
sought by the petitioner. The petitioner need not demonstrate notoriety oil the scale of n(ltjonal 
acclaim, but the national interest waiver corttemplates that her infh1e.nce be national in scope. 1d, at 
217, n.3. Mote specifically, the petitioner ''must clearly present a significant benefit to tl1e field of 
endeavor.'' ld. 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 
~rti:tlcation 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 T,J.S.C. § 1361; Matter of Otiende al 128. Here, that 
1Jl1rden has not been met. 
ORDER: The appeal is dismissed.