remanded EB-2 NIW Case: Science Education

(b)(6)
U~S. Department of Homeland Security 
U.S. Citizenship and Immigration Servi.ces 
Administrative Appeals Office (AAO) 
20 Massac.husetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship . 
and Immigration . 
Services 
PATE: DEC 0 5 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: 
PETITION: 
Pe~itioner: 
Beneficiary : 
Immigrant Petition for Alien Worker as a M<!mber of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of tht 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 AA.O does not (lnnounce new constructions of law nor establish agen~y policy 
. through non~precedent decisions. 
Thank you, 
7-Ron Rosepb 
Chief, Administrative Appeals Office 
www.usds.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page.2 
DISCUSSION: The pirector, Texas Service Center, denied the employment-based irrimigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will withdraw the director's 
decision. Because the record, as it now stands, does not support approval of the petition, the AAO will 
remand the petition for further action and consideration. 
The petitioner seeks classirication under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C § 1153(b)(2), as an alien of exceptional ability in the sciences and as a member of the 
professions with progressive po.st-baccalaureate experience equivalent to an advanced degree. The 
petitioner seeks employment as a high school science teacher. The petitioner asserts that an exemption 
from the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the 
professions with the equivalent of an advanced degree but that the petitioner had 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. Counsel asserts: "The Director's decision is 
clearly based on obvious error in that it grossly misstates the essentials [sic] details underlying [the 
petitioner's] petition." Review of the record confinns .that key facts did not receive consid.eration. 
Specifically, the petitioner intends to work as a high school scienc.e teacher, but the director's decision 
does not acknowledge or discuss this intended otcupation. Instead, the director focused on the 
petitioner's present employment as a chemist at Pham)a,ceutical Innovations, Inc., Newark, New Jersey. 
These facts; by themselves, do not support approval of the petition, but they are so integral to the 
petition that the director.should have taken them into account. 
Section 203(b) of the Act states, in pertinent part: 
I "-
(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 deenis 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The director did not dispute that the petitioner qualifies as a member of the professions with experience 
equivalent to an advanced degree under the U.S. Citizenship and Immigration Services (USCIS) 
reglllation at 8 C.P.R. § 204.5(k)(3)(i)(B). The sole issue in contention is whether the petitioner bas 
established that a waiver of the job offer requirement, and thus ~ 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 Corririlittee on the 
Judiciary merely noted in its report to the Senate that the committee had ''focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherWise .... " S. Rep. No. 55, IOlst Cong., 1St Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now USCISJ 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 oil its own merits. 
In reNew York State Dep't of Transportation, 22.I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in ·an area of 
substantial intrinsic merit. /d. at 217, Next, a petitioner must establish that the proposed benefit will be 
national in scope. ld, Finally, the petitioner s:eeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degtee than would an available U,S. worker having the 
same minimum qualifications. /d. at 217-18. · 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest /d. at 219. The 
petitioner's a.Ssurance that the alien will, in the future, serve the national interest caililot suffice to 
establish prospective national benefit. The term "prospective'' is included here 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. /d. 
the USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens ot 
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 
(b)(6)
NON-PRECEDENT DECISION 
Pa!?;e4 
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 electronically filed the Form 1-140, lmiliigrartt Petition for Alien Worker, on 
November 12, 201:4, .Part 6 of that form, ''Basic Information About the Proposed Employmen~/' 
included the following infortnatjon: 
l. Job Title: 93 -Teacher 
2. SOCCode: 2.5-.1032 
3. Nontechnical Description of Job: Teach co1,1rses pertaining to the application of 
physcial [sic] 
Ad(}ress where the person will work: 
9.a. Stte.et Number and Name: P.O. :Sox 500 
9.c. City or Town: Trenton 
9.d. State: NJ 
. . 
Standard Occupational Classification (SOC) Code 25-1032 co_rrespopds to "Engineering Teachers, 
Postsecondary.'' The sentence fragment ·stated on lirte 3, above, matches the first eigbt words of the 
. .· . . . . .. ·. .• ( . .. . . . . 
O*NET·SOC JOb descnptlon correspondmg to the SOC Code: ·· 
Teach courses pertaining to the. application of physical laws and principles of .· 
engineering for the development of machines, materials, ifistttimefits; pn)c¢sses, and 
services. includes teachers of subjects such as chemical, civil, electrical, industrial, 
rnechanic.al; mineral, a.nd petrolewn engineering, Includes both teachers primarily 
engaged in teachi11g artd those who do a combination of teCJ.ching and research.1 . 
Counsel later clarifieci that the petitioner seeks employment as a high school teacher. The SOC 
Code for that occupation is 25-"2031? The post office box ideJ:ltified above belongs to the. New 
iersey Department of Education, consiStent With the petitioner's intended employment as 'a high 
· schqol teacher. 
On December 29, 2012, the dire~tor i.s~lJeQ a request for evidence, stating that the petitioner had 
"failed to submit the requited evidence in support of [tbe] petition." The director instructed the 
petitioner to submit evidence to satisfy the gUidelines set forth in NYSDO'f. 
lrt response, counsel stated, that that the pe~iti.oner had .exhibited exceptional ability "in the areas of 
. Chemistry and Engineering, as proven by his extensive experience. and significant contributions to 
his employer, ~ With regards to the design, development, 
manufacture and distribution of medical products and accessories.'' , Counsel asserted that the 
''environmentally conscious and remarkably comprehensive pollution studie.s· that [the petitioner] 
~ Source: http://www.onctcodeconnector.org/c{;rcpotV25-1032.00 (printout added to record November 21, 2013) . 2 . -· - ... .. . . .. . 
Seehttp ://www.onetcodcconncctor.org!ccreport/25-2031.00 (printout added to record November21, 2013). 
'".. - ·---· i · - -
(b)(6)
NON-PRECEDENT DECISION 
PageS 
conducted in 1986 as a Naval Lieutenant in Colombia provide fi.lrth~r support for his scientific 
expertise and significant contributions to the field of science.?' 
president of 
company: 
(The petitioner] has been employee! by 
since April of 1996 .... 
described the petitioner ;s work for that 
as a Chemist 
The main duty of bi.s job is rnanufacturing ultrasound and conductivity gels and"' 
disinfectants to be used 'in the medical field. 
Other dutie~ incll!de. q\lality control test of raw materials, packing materials, finished 
products and online filling of products. 
Mr. stated the petitioner;s job title as "Chemist," but on Form 1-140, the petitioner 
identified his occupation as "Biomedical EJJ.gineer~" 
L__ _____ __. plant manager at 
j 
stated: 
[The petitioner] is the true brain behind our .company's unique scientific 
manufacturing process. His brilliant past contributions, and ongoing daf·to~day role 
can be attributed to [the petitioner's] extensive experience working with particular 
chemical solutions in the context of coropleJ!.: manufacturing processes that are crucial 
to the functioning of our business. 
[Tpe petitioner's] work is, and has always been; well above-average. 
The director denied the petition on April 16, 201~. In· the first paragraph of the d_eniC:ll noHce, the 
director stated that "[t]he petitioner seeks to classify himself as a Travel Demand Modeler." On the 
fourth p@.l'(lgraph of page 3, the director stated: "USCiS finds that the petitioner work in an atea of 
Chemistry and Biomedical Science(s) to be intrinsic merit [sic]. The petitioner is currently 
employed as a Chemist at . New Jersey." On the third 
paragraph of page 4, the director stated: "the petitioner has been shown to be a competent Chemical 
Engineer whose-sk_ills and abilities are of value to his current employer." The directot 's decision did 
not discuss the petitioner's imended future employment as a teacher. Instead, the ditectot limited 
discussion to the petitioner's wotk at 
On appeal, counsel states that the director "clearly erred In failing to use the correct Proposed Job 
Title when adjudicating [the] I-140 Petition" and disregarded "evidence ... about the country's 
ongoing critical need for new science teachers.;' Counsel asserts: 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
US CIS' blatant disregard of the substantial evidence in the administrative record is 
simply unl:).cceptable, and in the interests of justice and equity, the Director's decision 
should be set-aside on that basis alone. USClS should therefore exercise its 
discretion in [the petitioner's] favor by reconsidering the merits of his 1-140 petition 
and NJW request de novo. 
the appearance of the phrase "Travel Demand Modeler" at the beginning of the decision is 
unexplained, but the remainder of the decision contains correct details regarding the petitioner's 
credentials and hi_s past experience. It is evident that the reference to a ''Travel Demand Modeler" is 
a one-time error, comparable to the petitioner's use o~the incorrect SOC Code on Form I-140. 
The director's finding that ''the petitioner has been shown to be a competent Chemical Engineer 
whose ·skills and abilities are of value to his current employer" does not ''grossly misstatefl ' the 
relevant fact of [the] petition" as counsel claims. The petitioner's CUJTent employer, 
employs him as a chemist. The director's mention of chemistry, in reference to the 
petitioner's "current employeJ,'' dqes not signify a lack of attention to the record. _ 
Nevertheless, counsel is correct that the evidence of record shows that the petitioner intends to work 
not as a chemist or chemical engineer, but as a high school science teacher. The director was 
mistaken about the pet_itioner' s intended f).Iru.,re occup<:!,tion, and therefore could not come to a proper 
conclusion about the petitioner's prospective benefit to the United States. The AAO therefore 
withdraws the director's decision, and remands it for a new decision that takes the petitioner's 
intended teaching work into account. 
This remand order is not an instruction for the director to approve the petition. Rather, "it is ~-n order 
to issue a new decision consistent with the facts in the record. The director's . consideration of the 
rec_ord should take t_he following discussion into (lccount. 
The petitioner submitted copies of materials relating to his past and present work as a chemist. a.nd/or 
chemical engineer, but counsel did not state that the petitioner intends to continue working in that . -
field. Ra:tber, c<;>t,.msel stated that the petitioner's "proposed employment as a Bilingual Science 
Teacher is, undoubtedly, in this nation's best interest." In this regard, stated: 
It is my understanding that [the petitioner] holds official teaching certifiCates 'in, New 
Jersey and Florida. His experience working in the fields of chemistry, physics, 
biochemistry and engineering, coupled with his passion for these topics and love fot 
teaching will undoubtedly grant underprivileged students with· an incredible 
advantage they so desperately need .... 
[The petitioner's] fluency in Spanish Will also allow him to educate this country's 
growing number of Spanish-speaking students, who will benefit from being able to 
learn in a language they understand .... 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
[The petitioner's] contribution to public education in the fields of science and math 
will provide immediate relieve to those school districts, such as Newark, NJ, that are 
currently facing a shortage of educators in these subjeCt area.[sJ. In the long run, 
having [the petitioner] remain in the U.S. working as a science teacher will create a 
,nation"wide benefit, both to the coUQtry's scientific advancement, as well as to the 
nation's economy. 
An "Examinee Score R,~port" from the Educational Testing Service showed the petitioner's scores 
on various PRAXIS Series tests between 2001 and 2003. The petitioner took ''Co_ntent Knowledge'-' 
examinations for mathematics, chemistry, physics, and "general science," and received pa_ss{Qg 
grades under New Jersey standards. the petitioner's -math score (131) was below the passing level 
for Pennsylvania (136) but above passing level for New Jersey (130). 
The petitioner submitted a copy of an ''Official Statement of Status of Eligibility," indicating that the 
petitioner was "el_igible for a Flori<la Educator's Certificate" to teach chemistry. This statement, 
_issued in 2005, expired oil December 1, 2008. The petitioner submitted no evid~nce of its renewal, 
and no evidence that he held a Florida Educator's Certificate (as opposed to evidence of elig~biUtY 
for such a certificate). 
On March 2003, the State of New Jersey issued a Certificate of Eligibility, indicating tha.t the 
petitioner "is eligible to seek employment in positions requiring the Provisional Certificate" as a 
"Teach¢t ofPhysical Science." 
A 
'-'Contingent Employment Contract" dated July 10,2001 from the Newark (New Jersey) Public 
Schools offered the petitioner "employment in th~ position ofMath Teacher ... for the 2001'-2002 
school year ... subject to the filing of the below meittioned documents/q\la.lifications no later than 
September 1, 200 I.'' The contract then listed 11 Specific items. The copy of the contract shows 
check marks next to seven of the 11 items. The record does not show that the petitioner submitted 
all ofthe required items or actually worked for the Newark schools under the terms of this contract. 
While the national interest waiver hinges ort prospe~tive national benefit, the petitioner must 
-establish that his past record justifies projections of future benefit to the national interest. NYSDOT 
at 219. The petitioner's past record· need not be limited to prior work experience. He must, 
however, have established, ih some capacity, the -ability to serve the national interest to a 
substantially greater extent than the majority of his colleagues. The petitioner must establish a past 
history of demonstrable achievement with some degree of influence on the field as a wh_ole. In all 
cases the petitipner rn'-:ISt demonstrate specific prior achievements which establish his ability to 
benefit the national interest. /d. at 219 n.6. 
The record contains no evidence of the petitioner's past record as a teacher. The petitioner did not 
claim or document any past employment experience as a high school scien~;e teacheL Instead, the 
petitioner submitted g~neral background evidence regarding science education and a shortage of 
math and science teachers in New Jersey. 
(b)(6)
NON-PRECEDENT DECISION 
·Page 8 
With regard to the unavailability of qualified U.S. wo*ers, the job offer waiver based on national 
interest is not warranted solely for the purpose of ameliorating () local labor shortage, because the 
labor certification process is already in place to_ address such shortages. NYSDOT at 218. _, 
Whatever the petitioner's claimed achievements as a chemist or chemical engineer, he does not seek 
future employllle:t;lt in those fields, but rather as a high school teacher. The petitioner did not 
establish that his work as a classroom teacher would produce benefits that are national in scope. Cf 
NYSDOTat 217 n.3. 
The director did not consider the petitioner's intended teaching work, and for this reason that the 
AAO withdraws the director's decision and remands the petition for a n:ew decision that takes the. 
above facts into account. 
In visa petition proceedings, it is the petitioner's burde1_1 to establish eligibility for the immigration 
benefit ·sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofDtieiide, Z6 I&N Dec. 127, 128 
(BIA 2013). The withdrawal of the director's decision is not a finding that the petitioner has lllet tllat 
burden; 
OIIDER: The director's decision of April16, 2013 is Withdrawn. The petition is remanded to the 
director for further action in accordance with the foregoing and entry of a new decision 
which, if adverse to the petitioner, is to be certified to the AAO for review.