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 oflaw nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www .uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.
Thank you,
)J})J)WnoL
('Ron Rosenberg
~ Chief, Administrative Appeals Office www.uscis.gov
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, Immigrant Petition for Alien Worker, the petitioner seeks employment as an elementary school teacher. The petitioner has taught for since 2005. At the time of filing, the petitioner was working for at Elementary School in 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.No interest from users, customers or investors
On appeal, the petitioner submits a brief from counsel.
Section 203(b) of the Act states, in pertinent prut:
(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 p. 3 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).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part:
The Service believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits.
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm 'r 1998) (NYSDOT), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, a petitioner must establish that she seeks employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the waiver must establish that she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. /d. at 217-18.
While the national interest waiver hinges on prospective national benefit, the petitioner must establish her past record justifies projections of future benefit to the national interest. /d. at 219. The petitioner's subjective assurance that she will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used here to require future contributions by the petitioner, rather than to facilitate the entry of an individual with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative. /d. The petitioner has established that her work as an elementary school teacher is in an area of substantial intrinsic merit. It remains, then, to determine whether the proposed benefits of the petitioner's work will be national in scope and whether she will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications.
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the position sought. Assertions regarding the overall importance of a petitioner's area of expertise cannot suffice to establish eligibility for a national interest waiver. /d. at 220. Moreover, it cannot suffice to state that the petitioner possesses useful skills, or a "unique background." Special or unusual knowledge or training does not inherently meet the national interest threshold. The issue of whether similarly-trained workers are available in the United States is an issue under the jurisdiction of the Department of Labor. !d. at 221.
The petitioner filed the Form 1-140 petition on June 25, 2012. In Part 4 of the Form 1-140, the petitioner answered "yes" to whether any petitions had previously been filed on her behalf. The record reflects that filed a Form 1-140 petition, with an approved labor certification, on her behalf on September 8, 2008, to classify her as a professional under section 203(b)(3)(A)(ii) of the Act. The Texas Service Center approved the petition on January 30, 2009, with a priority date of April 28, 2008.
In a June 22, 2012 letter accompanying the petition, counsel stated that the petitioner's national interest waiver "is premised on her Master's Degree in Education ... and more than nineteen (19) years of dedicated and progressive teaching experience in both the United States and Academic degrees and occupational experience are elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, in tum, is not self..:evident grounds for the waiver. See section 203(b )(2)(A) of the Act. 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 of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given individual seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise. The national interest waiver is an additional benefit, separate from the classification sought, and therefore eligibility for the underlying classification does not demonstrate eligibility for the additional benefit of the waiver.
In his letter accompanying the petition, counsel did not mention the NYSDOT guidelines or explain how the petitioner meets them. The record does not show how the petitioner's work will impact the field beyond With regard to the petitioner's teaching duties, there is no evidence establishing that the benefits of her work would extend beyond her elementary school students such that they will have a national impact. NYSDOT provides examples of employment where the benefits would not be national in scope:
For instance, pro bono legal services as a whole serve the national interest, but the impact of an individual attorney working pro bono would be so attenuated at the national level as to be negligible. Similarly, while education is in the national interest, the impact of a single schoolteacher in one elementary school would not be in the national interest for purposes of waiving the job offer requirement of section 203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not be considered sufficiently in the nationalinterest for purposes of this provision of the Act. /d. at 217, n.3. In the present matter, the petitioner has not shown the benefits of her impact as a elementary school teacher beyond the students at her school and, therefore, that her proposed benefits are national in scope. In addition, the record lacks specific examples of how the petitioner's work as a teacher has influenced the education field on a national level. At issue is whether this p. 5 NON -PRECEDENT DECISION petitioner's contributions in the field are of such significance that she merits the special benefit of a national interest waiver, a benefit separate and distinct from the visa classification she seeks. A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. at 219, n. 6.
The petitioner submitted various letters of support from administrators, teachers, students, parents, and grandparents 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:
When observing [the petitioner's] classes, I have found her lessons to be both creative and thought provoking. [The petitioner's] lessons are so thought provoking that she brings teaching and learning alive within her classrooms, which has aided in many of her students being profient [sic] and advanced learners. She is a strong child's advocate who works diligently to ensure that all children gain success within the classroom.
[The petitioner] has demonstrated having outstanding skills in staff development, instructional delivery services, classroom management, communication and leadership.
As a professional, [the petitioner's] outstanding organizational skills have assisted her in developing well-organized lesson plans. [The petitioner's] outstanding instructional delivery and thrust for professional development has allowed her to build up her instructional practices of differentiate instruction, technology, incorporating multimedia presentations into her lessons. [The petitioner] is an active member of the first grade team, as well as the grade level chairperson , Science Coordinator, SPMT [School Planning and Management Team] member and member of the Parents and Teacher Association. [The petitioner] has been able to be very effective in accomplishing many successes with student's [sic] parents, and community . I feel certain that her exceptional knowledge of the curriculum and interpersonal skills will be most beneficial.
[The petitioner] is an outstanding individual who plays an instrumental part in the lives of our students. With her exemplary contributions to the academic achievements of our students, we bestowed her as the school's "Teacher of the Year" for 2012 and nominated her in the county for the same recognition.
Ms. comments on the petitioner's effectiveness in delivering lessons, advocacy for her students, teaching skills, activities at and receipt of the school's "Teacher of the Year" award and county nomination, but does not indicate how the petitioner's impact or influence as a teacher is national in scope. In addition, Ms. fails to provide specific examples of how the petitioner's work has influenced the field as a whole.
Assistant Principal, stated:
I have the opportunity to observe and work with [the petitioner] in her first grade class during the school years (2007-2012). I have been very impressed with her professional ability and dedication in creating a successful learning community within her classroom in each subject area she teaches.
She has managed to maintain a positive learning environment that has allowed her to capture the trust of her students, and it is evident that they take their learning seriously. It is important to her that she treats each student as an individual. She works hard to build upon the strengths of her students in order to stimulate a positive self-esteem. When planning her lessons, she always differentiates the students' assignments, activities, and projects. It is also important for her to treat the students fairly and with dignity when handling behavior issues. [The petitioner] collaborates on a regular basis with her colleagues and the administration regarding assessment data. She uses this data to help understand her students' strengths and weaknesses, which enables her to plan her lessons accordingly for the success of her students. [The petitioner] and I have had many dialogues about her presentation and execution of various lessons. Even though, I found them to be excellent, she always asks for suggestions so that she can continuously stretch and become an even better teacher for her students. Any suggestion that is presented to her is accepted enthusiastically and implemented when appropriate. To carry out her professional responsibilities , she gives generously of her valuable time, and often her work extends beyond the school day.
Ms. comments on the petitioner's professional ability, dedication, creation of a positive learning environment, differentiation of students' lessons, capability in handling behavioral issues, effective use of student assessment data, willingness to implement suggestions, and the amount of time the petitioner devotes to her school, but does not indicate that the petitioner's work has had, or will continue to have, an impact beyond the students in her classroom and the local school system that employed her.
Reading Specialist, stated:
I have had the pleasure of observing and working with [the petitioner] for the past six years at During this time, she has grown and taken on several responsibilities on our school. For instance, she provides daily and consistent instruction, facilitates staff developments, been the first grade level chairperson and Science coordinator, designs web page and documents for students and staff.
Ms. mentions the petitioner 's responsibilities at but fails to provide specific examples of how the petitioner's work has influenced the field as a whole. p. 7 a parent whose children were taught by the petitioner at stated:
[The petitioner] is a dedicated Educator. I believe that her teaching methods are aligned with current teaching methodologies. [The petitioner] goes above and beyond established classroom instruction time, which I find impressive . For example, she willingly provided tutoring to my son when he needed additional math practice. As a result, my son's math skills have improved significantly.
Ms. comments on the petitioner's dedication as an educator and asserts that the petitioner helped improve her son's mathematics skills, but her observations fail to demonstrate that the petitioner's work has influenced the field as whole, or that the petitioner has or will benefit the United States to a greater extent than other similarly qualified elementary school teachers. The petitioner's references praise her 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.
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 be~efit sought. /d. The submission of letters of support from the petitioner's personal contacts is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they suppmt 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").
In addition to the reference letters, the petitioner submitted the following:
1. Employment verifications;
2. A State of Colorado Professional Teacher license;
3. A Commonwealth of Virginia Collegiate Professional License for elementary education, special education, general curriculum, and early childhood special education;
4. A Maryland Educator Certificate;
5. A "Report of Rating" from the National Board for Teachers,
Metro stating that the petitioner "passed the professional board examination for teachers";
6. A "Certificate of Eligibility" from the Civil Service Commission of
7. A "Report of Result" from the Division of providing the
petitioner's score on the "Division Competitive Examination for Teachers";
8. A certification from the Professional Regulation
Commission, stating that the petitioner is a registered Elementary Teacher;
9. Praxis Series test score reports;
10. Academic records and transcripts;
11. An Award of Excellence from the principal of for the petitioner's participation on the SPMT 2011-2012;
12. An April 9, 2012 letter from the indicating that the petitioner was among multiple winners of the 13. A certificate and other material from indicating that the petitioner was among 26 nominees for' County Teacher of Year";
14. A certificate from the administration of honoring the petitioner as' Teacher of the Year 2011~2012";
15. A certificate from the administration of honoring the petitioner as "2012 Teacher of the Year";
16. A photograph of an award plaque from the
Staff, Parent Teacher Association (PTA), and Parents honoring the petitioner as the school's "2012 Teacher of the Year";
17. A "Certificate of Special Recognition" from the administration of School for "Most Outstanding Teacher of the Year" (2011);
18. A "Certificate of Special Recognition" from the administration of School for "Most Outstanding Teacher of the Year" (2010);
19. A "Certificate of Special Recognition" from the administration of School for "Outstanding Teacher of the Year" (2009);
20. An "Outstanding Teacher Award" from the administration of School "in recognition for excellent achievements in teaching for SY [School Year] 2007-2008";
21. A "Certificate of Recognition" from the principal of being an Outstanding Teacher for 2007";
22. An "Outstanding Teacher
Certificate" from the principal of
(June 2, 2006);
23. A "Staff of the Month Award" from the administration of (February 2012);
"for
24. A "Staff of the Month Award" from the administration of (January 2012);
25. A "Teacher of the Month" certificate from the administration of School (September 28, 2011);
26. An "Excellence and Dedication" certificate for SY 2007-2008 from 27. A "Certificate of Achievement" (2006) from the County Executive of of
County during American Education Week in honor of the petitioner's "service as an educator" in the system;
28. A Certificate of Appreciation from the president of the PTA (May 7, 2007);
29. A Certificate of Appreciation from the president of the PTA (May 8, 2006);
30. A certificate and February 15, 2012 letter indicating that the petitioner's biographical entry is listed in directory of professionals;
31. A Learning and the Brain Society membership;
32. An International Technology and Engineering Educators Association membership;
33. A Global Education Conference membership;
34. A County Educators' Association membership;
35. A National Education Association membership;
36. A membership card for the Maryland State Education Association;
3 7. A Certificate of Membership for the Maryland Chapter of the AFT A;
38. A Certificate of Achievement from the principal of for "contributions to the academic growth of first grade class" (2011 );
39. A Certificate of Achievement from the principal of for "contributions to the academic growth of first grade class" (2010);
40. A Cettificate of Achievement from the principal of for "contributions to the academic growth of first grade class" (2009);
41. A Certificate of Appreciation from the administration of (June 19, 2009);
42. A "Certificate of Outstanding Achievement in Teaching" from the principal of or providing "superior tutorial service" (2011-2012);
43. An Award Certificate from the principal of for "tutoring her students throughout the school year 2010-2011"; -------------------44. A "Tutoring A ward" from the administration of for the school year 2009-2010;
45. A Certificate of Recognition from the administration of for contributing to the success of the school Science Fair 2012;
46. A Certificate of Achievement from the principal of for "excellent achievements in the Science Fair 2011";
4 7. An "Outstanding Leadership" award from the principal of for serving as grade level chairperson in the 2011-2012 school year;
48. A "Leadership Award" from the principal of for serving as grade level chairperson in the 2008-2009 school year;
49. A "Leadership Award" from the administration of for serving as grade level chairperson in the 2007-2008 school year;
50. A "Certificate of Special Recognition" from the administration of for serving as a member of the school improvement team (2010-2011);
51. A "Certificate of Special Recognition" from the administration of for serving as a member of the school improvement team (2009-2010);
52. An Award Certificate from the administration of for serving as a member of the Positive Behavior Intervention Support Team (2010-2011);
53. A Certificate of Appreciation from the administration of for serving as a member of the Positive Behavior Intervention Suppmt Team (2009~ 2010);
54. A Certificate of Appreciation from the administration of for serving as a member of the Positive Behavior Intervention Support Team (2008-2009);
55. A Certificate of Aepreciation for contributing to the ' program (October 22, 2009); --
56. A Certificate of Appreciation from the Department of Education, Culture and Sports, for support and assistance with the
District Pop Quiz 2003";
57. A Certificate of A reciation from the Department of Education, Culture and Sports, for "service rendered as Tournament
Manager- Chess during the 2002";
58. A Certificate of Recognition from the Department of Education, Culture and Sports, _ _ _ for serving as "Winning Coach/Trainer of the 2nd place winner" in the Elementary Girls Chess event during . the 2001 59. A Certificate of Appreciation from the Department of Education, Culture and Sports , "for his/her invaluable support and contribution during the 2001" and the Elementary Girls Chess event (1
Place);
60. A Certificate of Recognition from the Department of Education, Culture and Sports, for serving as winning coach of the 3rd place student in Spelling Level III during the "District Academic and Literary Competition 2001";
61. A Certificate of Recognition from the Department of Education, Culture and Sports, for serving as "Winning Coach/Trainer of the 1 place winner in Boxing (Elementary- Boys) at the . 2000";
62. A Certificate of Recognition from the De artment of Education, Culture and Sports, for serving as "Winning Coach/Trainer of the 2nd place winner in Chess (Elementary- Boys) at the 2000";
63. A nomination form indicating that Ms. nominated the petitioner for a "2011 Outstanding Educator Using Technology in Education Award";
64. A "Certificate of Recognition" from the administration at for being a Sharing Technology with Educators Program (STEP) Member "Workshop Coordinator/Trainer" at the "Cool Tools" STEP It Up Workshop (May 6, 2010);
65. A "Certificate of Recognition" from the administration at for being a STEP "Workshop Coordinator/Trainer" at the "Google Site Webpage" STEP It Up Workshop (November 17, 2009);
66. A certificate and an internet screenshot indicating that the petitioner won 2nd place in the "Digital Photography Animals" category in the "2011 Digital Arts Contest" at the Conference;
67. A certificate and an internet screenshot indicating that the petitioner won 2nd place in the "Digital Photogra hy Still Life" category in the "2011 Digital Arts Contest" at the Conference;
68. A "Certificate of Appreciation" from the
"for having selflessly shared her skills and efforts as Camp Staff in the Encamoment " (November 2003);
69. A Certificate of Participation from the Department of Education, for her participation in "the held at
(February 2003);
70. A Certificate of Participation from the Department of Education, "for active involvement during the Division Schools Press Conference held at (October 2002);
71. A Certificate of Participation from the Department of Education, _ for serving "as Facilitator during the Basic Training for Young School Writers held in (January 10, 2002);
72. A Certificate of Participation from the Department of Education, _ "for services rendered during the 3rd Division Children's Congress" (October 2001);
73. A Certificate of Aooearance from the Deoartment of Education, Culture and Sports, for participating in "the of
2001. . . as Coach- Chess (Elementary-Boys)";
74. A "Certificate of Participation" from the
"for having participated in the 1st SL Regional Camp held at _ '(February 2001) ;
75. A Certificate of Participation from the "for active participation in the 'On the Spot Poster Making Contest"' (November 24, 2000);
76. A Certificate of Appreciation from the Department of Education, Culture and Sports, "for having served as a Member
Committee on Registration & Drawing of Lots during the Division Selection of G. at Bb. WOO";
77. A Certificate of Recognition from the Department of Education, Culture and Sports, South District Sports Committee "for em~rging as winning coach/trainer having placed 1st place in Chess B&G during the 2000 (October 2000);
78. A Certificate of Participation from the Department of Education, Culture and Sports, Foundation Anniversary held at
(August 25, 2000);
"for having actively participated in the 44th
National High School Student Pavillion"
79. A Certificate of Participation from the City of "for actively participating as one of the coaches for the S&T Poster Making Contest" (June 2000);
80. A Certificate of Participation indicating that the petitioner participated as a coach in the Substance Abuse Awareness Poster Contest" (March 11 , 2000);
81. A Certificate of Appreciation from the Department of Education, Culture and Sports, "for his/her invaluable support and contribution during the WOO";
82. A Certificate of Participation from the Department of Education, Culture and Sports, "for having actively participated in the 2000 held at Februar 2000);
83. A Certificate of Participation from the
"for having participated in the Poster Making Contest conducted by this office m celebration of the Population and Development Week" (November 24, 1999);
84. A Certificate of Appreciation from the Department of Education, Culture and Sports, "in recognition of his/her valuable cooperation, support and meritorious attendance in the successful endeavor in the division selection of (October 6, 1998);
85. A Certificate of Recognition from the Department of Education, Culture and Sports, for serving as a girl's vocal solo coach in the District Literary Music Contest (September 1, 1999);
86. A Certificate of Participation from the Department of Education, Culture and Sports, 'Search for
(August 31, 1999); for his r sic 1 active participation in the held at
87. A Certificate of Participation from the Department of Education, Culture and Sports, "for having actively participated during the 1999 Nutrition Month Celebration held at (July 1999);
88. A Certificate of Participation from the Department of Education, Culture and Sports, the
"for having been actively involved in
On-the-Spot Poster Making Contest on Natural Disaster Consciousness" (June 1999);
89. A Certificate of Patticipation for serving as an advisor in the Young Scientists' Quiz Division Level Competition; and
90. A Certificate from for participation in the
(English) program;
(b)(6) NON-PRECEDENT DECISION
91. A "Report of Rating" from the National Board for Teachers stating that the petitioner "passed the professional board examination for teachers held in 92. A "Certificate of Eligibility" from the Civil Service Commission of 93. Employment verifications;
94. A Certificate of Membership from the Maryland Chapter of the AFT A;
95. A membership card and online member profile for the National Association of Professional Women; and
96. A membership card for the Maryland
State Education Association.
Again, academic records, occupational experience, professional certifications, membership in professional associations, and recognition for achievements are all elements that relate to a finding of exceptional ability, but exceptional ability is not sufficient to establish eligibility for the national interest waiver. The plain language of section 203(b )(2)(A) of the Act indicates that aliens of exceptional ability are subject to the job offer requirement (including alien employment certification). Particularly significant awards may serve as evidence of the petitioner's impact and influence on her field, but the petitioner has failed to demonstrate that the awards she received (items 11 - 90) have more than local, regional, or institutional significance. There is no documentary evidence showing that items 1 through 96 are indicative of the petitioner's influence on the field of education at the national level.Past record does not show influence or success
The petitioner also submitted numerous certificates of participation, completion, and attendance for training courses and seminars relating to her professional development. While taking courses and attending seminars are ways to increase one's professional knowledge and to improve as a teacher, there is nothing inherent in these activities to establish eligibility for the national interest waiver. In addition, the etitioner submitted copies of her "satisfactory" teacher evaluations from . The petitioner, however, failed to demonstrate how the evaluations reflect that she has impacted the field to a substantially greater degree than other similary qualified elementary school teachers and how her specific work has had significant impact outside of the school where she has taught.
The petitioner also submitted evidence of her teaching material, student performance assessments, and other educational activities, but the petitioner does not explain how the submitted documentation demonstrates her influence on the field as a whole.Argued the field's importance, not the endeavor's
The director issued a request for evidence on December 1, 2012, instructing the petitioner to submit evidence demonstrating that the benefits of her proposed employment would be national in scope and that she "has a past record of specific prior achievement with some degree of influence on the field as a whole."
In response, the petitioner submitted President George H.W. Bush's "Remarks on Signing the Immigration Act of 1990"; information about Public Law 94-142; an article in Encyclopedia of the p. 14 Supreme Court of the United States about Brown v. Board of Education, 347 U.S. 483 (1954); a copy of Section 1119 of the No Child Left Behind Act (NCLBA); a 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"; an article entitled "Supporting Science, Technology, Engineering, and Mathematics Education - Reauthorizing the Elementary and Secondary Education Act"; "Barack Obama on Education" questions and answers posted at www.ontheissues.org; a report entitled "Special Education Teacher Retention and Attrition: A Critical Analysis of the Literature"; 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 "Importance of Science and Math Education"; 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); information about STEM (science, technology, engineering and mathematics) fields printed from the online encyclopedia Wikipedia; and an article entitled "STEM Sell: Are Math and Science Really More Important Than Other Subjects?" As previously discussed, general arguments or information regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual benefits the national interest by virtue of engaging in the field. NYSDOT, 22 I&N Dec. at 217. Such assertions and information address only the "substantial intrinsic merit" prong of NYSDOTs national interest test. None of the preceding documents demonstrate that the petitioner's specific work as an elementary school teacher has influenced the field as a whole. The director denied the petition on May 7, 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 petitioner had not shown that the proposed benefits of her work as an elementary school teacher will be national in scope. The director also determined that the petitioner had failed to demonstrate she "would specifically benefit the national interest of the United States to a substantially greater degree than a similarly qualified U.S. worker."
On appeal, counsel asserts that "USCIS erred in giving insufficient weight to the national educational interests enunciated in the No Child Left Behind Act of 2001 [NCLBA] as the guiding principle rather than the precedent case" NYSDOT. With regard to following the guidelines set forth in NYSDOT, by law, the USCIS does not have the discretion to ignore binding precedent. See 8 C.P.R. § 103.3(c).
Counsel argues that Congress passed the NCLBA three years after the issuance of NYSDOT as a precedent decision, and claims that "[t]he obscurity in the law that NYSDOT sought to address has been clarified," because "Congress has spelled out the national interest with respect to public elementary and secondary school education" through such legislation. In addition, counsel contends that "the NCLB Act and the Obama Education Programs, taken collectively, provide the underlying context for the adjudication of a national interest waiver application made in conjunction with an E21 visa petition for employment as a Highly Qualified Teacher in the public education sector." p. 15 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. Counsel identifies no specific legislative or regulatory provisions that exempt school teachers from NYSDOT or reduce its impact on them. The unsupported assertions of counsel do not constitute evidence.Claims not backed by documents 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 Act by adding section 203(b)(2)(B)(ii) to create special waiver provisions for certain physicians. Congress not only can amend the Act to clarify the waiver provisions, but has in fact done so in direct response to NYSDOT. Counsel has not shown that the NCLBA contains a similar legislative change.
Counsel further states:
With respect to the E21 visa classification, INA§ 203(b)(2)(A) provides in relevant part that: "Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national . .. educational interests, ~ .. of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
Counsel, above, highlights the phrase "national ... educational interests," but the very same quoted passage also includes the job offer requirement, i.e., the requirement that the alien's "services ... are sought by an employer in the United States." By the plain language of the statute that counsel quotes on appeal, an alien professional holding an advanced degree is presumptively subject to the job offer requirement, even if that alien "will substantially benefit prospectively the national ... educational interests ... of the United States." Again, neither the Act nor the NCLBA create or imply any blanket waiver for highly qualified foreign teachers. As members of the professions, teachers are included in the statutory clause at section 203(b )(2)(A) that includes the job offer requirement.
Counsel asserts that "Congress legislated [NCLBA] to serve as guidance to USCIS in granting legal residence to 'Highly Qualified Teachers."' Section 9101(23) of the NCLBA defines the term "Highly Qualified Teacher." Briefly, by the statutory definition, a "Highly Qualified" elementary school teacher:
- has obtained full State certification as a teacher or passed the State teacher licensing examination, and holds a license to teach in such State;
- holds at least a bachelor's degree; and
- has demonstrated, by passing a rigorous State test, subject knowledge and teaching skills in reading, writing, mathematics, and other areas of the basic elementary school curriculum, or (in the case of experienced teachers not "new to the profession") p. 16 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.
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.
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." Moreover, the petitioner's level of education and experience are not required for "highly qualified" status under the NCLBA.
Counsel quotes remarks made by then-President George H.W. Bush when he signed the Immigration Act of 1990, which created the national interest waiver: "This bill provides for vital increases for entry on the basis of skills, infusing the ranks of our scientists and engineers and educators with new blood and new ideas." Counsel interprets this passage to mean that Congress created the national interest waiver for "highly qualified" educators. The Immigration Act of 1990, however, was not restricted to the creation of the waiver. It was, rather, an overhaul of the entire immigration structure, creating new employment-based immigrant classifications to replace the "third preference" and "sixth preference" classifications previously in place. "[S]cientists and engineers and educators" are all members of the professions who, under the terms dictated by Congress in the Immigration Act of 1990 (as it amended the Act), are all subject to the job offer requirement.
Counsel asserts that the director "erred in disregarding evidence demonstrating the national scope of the petitioner's proposed benefit through her effective role in serving the national educational interest of closing the achievement gap." The record, however, contains no evidence that the petitioner's efforts have significantly closed that gap in or nationally. The national importance of "education" as a concept, or "educators" as a class, does not establish that the work of one teacher produces benefits that are national in scope. NYSDOT at 217, ri.3. A local-scale contribution to an overall national effort does not meet the NYSDOT threshold. The aggregate national effect from thousands of teachers does not give national scope to the work of each individual teacher.
Counsel continues:
The national priority goal of closing the achievement gaps between minority and nonminority students, and between disadvantaged and more advantaged children is especially relevant in the context of and [the petitioner's] assigned school. The 2012 MSA [Maryland School Assessment Reading results show that out of the 24 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 at the "All Student" level . ...
The petitioner has worked for since 2005, and thus had been there for a number of years before the administration of the 2012 MSA tests. Counsel does not explain how the 2012 MSA results for (which indicate low rankings relative to other Maryland school districts) establish that the petitioner has played an effective role in "closing the achievement gap."
Counsel asserts that the petitioner "is an effective teacher in raising student achievement in STEM ," but he cited no documentary evidence to support the claim. As previously discussed, the unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 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's work has had an impact or influence outside of the school where she has taught.
Counsel asserts that "the Director has easily dismissed the incomparable accomplishments of [the petitioner]," but there is no documentary evidence showing that the petitioner's accomplishments are "incomparable" as claimed. Again, the unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534, n.2; Matter ofLaureano , 19 I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506.
Counsel points to the petitioner's awards (items 11 - 90), professional development training, student assessments, and school activities as evidence of her "past history of achievement." As previously discussed, this evidence does not show that her work has had a wider impact on the field of elementary education, or that her work has otherwise influenced the field as a whole.
Counsel states that factors such as "the 'Privacy Act' protecting private individuals" make it "impossible" to compare the petitioner with other qualified workers and that USCIS "should have presented its own comparable worker." The NYSDOT guidelines, however, do not require an item by-item comparison of the petitioner's credentials with those of qualified United States workers . The key provision is that the petitioner must establish a record of influence on the field as a whole. Moreover, there is no provision in the statute, regulations, or NYSDOT requiring the director to specifically identify another equally qualified school teacher. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende , 26 I&N Dec. 127, 128 (BIA 2013).
Counsel contends that "the Immigration Service is requiring more from the beneficiary's credentials [ ] tantamount to having exceptional ability," but an individual is not required to qualify as an alien p. 19 of exceptional ability in order to receive the national interest waiver. As previously discussed, the requirements for exceptional ability are separate from the threshold for the national interest waiver. It remains that the petitioner's evidence does not establish eligibility for the national interest waiver. The director did not require the petitioner to establish exceptional ability in her field. Instead, the director determined that the petitioner had "not established that a waiver of the job offer and labor certification requirement will be in the national interest of the United States."
Counsel states that while the NCLBA "requirements set minimum standards for entry into teaching of core academic subjects, they have not driven strong improvements in ... the effectiveness of teachers in raising student achievement." However, assertions regarding the need for educational reform in the United States only address the "substantial intrinsic merit" prong of NYSDOTs national interest test. In addition, counsel quotes a study that concluded the "Teach For America" program "rarely had a positive impact on reading achievement." The record, however, does not include a copy of the study. Once again, the unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena at 534, n.2; Matter of Laureano at 3, n.2; Matter of Ramirez Sanchez at 506. Regardless, counsel does not show that the petitioner's individual teaching efforts, after several years in the United States, have set her apart from other educators with regard to raising student achievement in or nationally.
Counsel cites to studies pointing to high turnover rates and inexperience among special education teachers. Again, 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 shows that there is a demand for credentialed special education teachers, a demand that the labor certification process can- and, in this instance, did- address.
Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she possesses qualifications "that could not be articulated in conformity with the process regulations. " Counsel's assertion, however , is not supported by the evidence in the record. As previously indicated, filed an Application for Permanent Employment Certification, ETA Form 9089, on behalf of the petitioner that wa~ certified by the U.S. Department of Labor with a priority date of April28, 2008. Moreover, the employment certification process outlines the minimum requirements for a job opportunity. It does not preclude the employer from hiring applicants that exceed the minimum qualifications for the position . Regardless, the inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must demonstrate that she will serve the national interest to a substantially greater degree than do others in the same field. NYSDOTat 218, n.5.
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. Again, the unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. at 534, n.2; Matter of p. 20 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 teachers such as the petitioner, "more American teachers will have ... employment opportunities" because standards will be met and schools will not be abolished. However, there are no blanket waivers for highly qualified foreign teachers. As previously discussed, USCIS grants national interest waivers on a case-by-case basis, rather than establishing blanket waivers for entire fields of specialization. NYSDOT at 217.
A plain reading of the statute indicates that engaging in a profession (such as teaching) does not presumptively exempt such professionals from the requirement of a job offer based on national interest. The petitioner has not established that her past record of achievement is at a level sufficient to waive the job offer requirement which, by law, normally attaches to the visa classification sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national acclaim, but the national interest waiver contemplates that her influence be national in scope. Id. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 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 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 .