Degree or an-Alien of Exceptional Ability Pur~uant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 11S3(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents I related to this matter have been ·returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your chse must be made to that office.· If you believe the AAO inappropriately applied the law in !reaching its decision, or you have additional information that you wish to have considered, you may file almotion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice o~ Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § .J03.5(a)(l)(i) requires any motion to be filed within 30 ~ys of the decision that the motion seeks to reconsider or teopen.
Thank you,
Ron Rosenberg
Acting Chief; Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The petitioner filed a motion to reconsider, whic~ the director dismissed. The matter is now before the Administrative Appeals Office (AAO) on appeal!. The AAO will dismiss the appeal. · The petitioner seeks classification under section 203(b)(2) lfthe hnmigration and Nationality Act (the Act),. 8 U.S.C. § 1153(b)(2), as a member of the prof~s.sions holding an advanced degree. The petitioner ~eeks employment as a special education teacher! for I in Maryland. She has taught at Maryland, since 2005. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a . I 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 profession~ holding an advanced degree, but that the petitioner has not established that an exemption from the ~equirement of a job offer would be in the national interest ofthe United States.No interest from users, customers or investors
On appe_al, the petitioner submits a bri~f from counsel as well as background documentation. Section 203(b) of the Act states, in pertinent part:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of .
Exceptional Ability. - .
(A) In General. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced dbgrees or their equivalent or who be~ause of their exceptional 'ability in the sciences) arts, or business, will substanticilly benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services m the scibnces, 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 A.domey General deems it to be in the national interest, waive the requirements ofkubparagraph (A) that an alien's services in the sciences, arts, professions, or bu~iness be sought by an employer in the United States.
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress did not proVide a specific definitio~ 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 increasing the number and proportion of visas for immfgrants who would benefit the United States economically and otherwise .... " S; Rep. No. 55, lOlst Cohg., 1st Sess., 11 (1989).
Supplementary information to regulations implementing le.Immigration Act of 1990, published at 56 Fed. Reg. 60897, ?0900 (November 29, 1991), states: I p. 3 The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate to leave the application of this test! as flexible as possible, although clearly an alien seeking to meet the [national inte¥st] standard must make a showing significantly above that necessary to prove t~e "prospective national benefit" [required of aliens seeking to qualify as "except~onal."] The burden will rest with the alien to establish that exemption f,Tom, or waiver of, the job offer will be in the national interest Each case is to be judged on its twn merits.
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set forth several factors which·must be consideted when evaluating a request for a national interest waiver. First, the petitioner must show that ~e alien seeks employment in an area of substantial intrinsic merit. Next, the petitioner must show ~at the proposed benefit will be national in scope. · Finally, the petitioner must establish that the ·a.J.ien will serve the national interest to a substantially greater degree than would an available UnitJI States work~ having the saine minimum qualifications.
While the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of fuulrre· benefit to the national interest. The petitioner's subjective assurance that the alien will, in ilie future, serve the national interest cannot suffice to establish prospective national benefit. The intbntion behind the term "prospective" is to require future contributions by the alien, rather than td facilitate the entry of an alien with no I . demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.
The USCIS regulation at 8 C.P.R. § 204.5(k)(2) defin es "exceptional ability" as "a degree of expertise significantly above that ordinarily encounteredj' in a given area of endeavor. By statute, aliens of exceptional ability are generally subject to the job offer/labor certification requirement; they are riot exempt by virtue of their exceptional abilit~. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as 1a member of the professions holding an advanced degree, that alien cannot qualify for a waiver jhst by demonstrating a degree of expertise significantly above that ordinarily encountered in his or hbr field of expertise.
. I .
The_petitioner filed the Form 1-140 petition on March 1~, 2012. USCIS records show that filed a petition, with an approved labor certification, seetqng to classify the alien as a member of the professions under section 203(b )(3) of the Act. . The director approved that petition on July 10, 2009; the approved petition has a priority date of Septerbber 29, 2008. There is no indication that withdrew that petition or that the director reJoked its approval; the approved petition remains in effect. For· nationals of the Philippines,[ such as the petitioner, that . immigrant classification is oversubscribed. The March 2013 Visa Bulletin shows a cutoff date of September 1, 2006. Because the. petitioner's approved petition has a lhter priority date, she is not yet eligible to adjust status based on that approved petition.
The petition included a statement in which the petitioner (Jescribed a successful and fulfilling career in special education. She did not, in this statement, direJtly address the eligibility requirements for p. 4 the national interest waiver. Rather, she acknowledged that she filed the petition as a means to avoid a temporary interruption in her ability to live and wbrk in the United States. She stated: Having taught in USA for almost-7 years now hl given m~ a mis~ion in my life to continue my job of helping my students the be~t way I can based from [sic] my education, trainings [sic] and experience. And Ijcan only do this if I am given the chance to continue my residency here in USA. I was sponsored by [sic] md currently I have a!n I140 wi.th a priority date of Sept.
2008, but since has been debarred fromlcontinuing my sponsorship as per Department of Labor decision,_ then I have to ~nd another route to continue my advocacy of applying my profession for the .betterment of the students of USCIS invoked the debarment provisions of section 2112(n)(2)(C)(i) of the Act against owing to certain immigration violations by that employet. As a result, between March 16, 2012 to March 15, 2014, USCIS will not approve any emplo~ent-based immigrant or nonimmigrant petitions filed1 by This debarment means that!. is, temporarily, unable to file its own petition on the alien's behalf. (The debarment order does- not affect the validity of the · previously approved petition from 2008. It simply preveJts the appro.val of new petitions during the I prescribed period.) While oversubscription has delayed the petitioner's ability to adjust status based on her approved petition, and cannot file a sto~gap nonimmigrant petition on her behalf, I these factors are not sufficient cause for a national interest waiver; the petitioner still must demonstrate that the alien will serve the national intere~t to a substantially greater degree than do others in the same field. Cf NYSDOT, 22 I&N Dec. at 2i18 n.5 (unavailability of labor certification does not warrant approval of the waiver).
Neither the Texas Service Center nor the AAO is respo11sible for tQ.e debarment, and those entities have no authority to override or modify it. The national interest waiver is not a means for aliens to override or avoid legal sanctions imposed on their intendirg employers 2 · The petitioner submitted copies of various materials relating to her work, including certificates, evaluations, classwork and photographs. Similarly, seve~al witness letters show that colleagues and administrators hold the petitioner in high regard. These in.aterials demonstrate that the petitioner is a successful teacher,.but they do not self-evidently set hdr apart from other competent and qualified teachers.
On June 26, 2012, the director issued .a request for evidence. The director noted that the petitioner is the beneficiary of an approved immigrant petition fi11ed by The. director stated: "The 1 The list of debarred employers is available online at http://L.dol.gov/whd/immigration/HIBDebarment.htm (printout added to record February 27, 2013). . I
petitioner must establish that the beneficiary has a past ~ecord of specific prior achievement with some degree of influence on the field as a whole. The bJneficiary's previous influence on the fi_eld as a whole must justify projections of future benefit to thd national interest."
In response, counsel asserted that it is unrealistic tQ exJect a special educatipn teacher' s work to produce a benefit that is national in scope. This obseryation is consistent with NYSDOT, which contains the following passage: "While education is in the national interest, the impact of a single schoolteacher in one elementary school would not be in ill~:' national interest for purposes of waiving the job offer requirement of section 203(b)(2)(B) ofthe!Act." !d. at 217 n.3. Counsel, however, contends that "the proposed employment [is] national in scope" because "Acts of Congress and other pronouncements" have stressed the importance of educators and education. In this way, I counsel conflates the national importance of "educationj' as a concept, or ·"educators" as· a class, with the impact of one teacher. The undeniable importance of education as a whole does not imply that Congress has indirectly ·exempted teachers sucll as the petitioner from the job . offer requirement.
Counsel claimed that the labor ceJ1ification process poses a "dilemma" for the petitioner because she possesses qualifications above the bare minimum required for the job she seeks, and therefore "the United States Department of Labor would .. ~ most likely recommend denial of the applicatio~" fo~ labor certific~t.ion. The Department ofj Labor, howe~er, has alr~ady approved a labor certificatiOn for the petitioner, and therefore counsel's speculation contradicts documented facts.
Counsel stated that another teacher received a national interest waiver, and asked that the present ·petitio? ."be treate~ i~ ~e same light." Whi19 8 C.~.R . § 103.3~c~ ·pro_vides that AAO precedent decisions are bmdmg on all USCIS employees m the admirustration of the Act, unpublished decisions are not similarly binding. Furthenhore, counsel has furnished no evidence to . . I
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NYSDOT or reduce its impact on them. Counsel notes that Congress passed the NCLBA ''three years after NYSDOT was designated as a precedent decision."
The assertio~ that the NCLBA is tantamount to a re~jction or modification of NYSDOT is not - I persuasive; the NCLBA did not amend section 203(b )(2) of the Act In contrast, section 5 of the Nursing Relief for Disadvantaged Areas Act of 199~, Pub.L. 106-95 (November 12, 1999), specifically amended the lnimigration and Nationality 4'-ct by adding section 203(b )(2)(B)(ii) to create special waiver provisions for certain physicians. Because Congress not only can amend the Act to clarify the waiver provisions, but has in fact done ~o in direct response to NYSDOT, counsel has not ni.ade a persuasive claim that NCLBA indirectly irhplies a similar legislative change. Counsel devotes some attention to the petitioner's inkividual qualific:tions, but mos~ of the\ - - I