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:
SELF-REPRESENTED
INSTRUCTIONS:
Enclosed please find the decision of th~ Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new·constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you. lfl~Y file a motioQ to te<,:onsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal ot Motion (Form I-290B) within 33 days of the date of this · decision. Please review the Form I~290B instructions at http:/!www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO.
Thank you,
.>-Ron Rosen · rg
Chief, Administrative Appeals
Office www.uscis.gov p. 2 r
NON-PRECEDENT DECISION
Page 2 ·
· DISCUSSION: The Pitector, Texas _ Service Center, denied the employment-based immigrant visa petition. The matter is now before tbe AAO on appeal. The AAO will dismiss the appeal.
The petitioner seeks classification under section 203(b )(2) of the Immigration and -Niitionality Act (the Act), 8 U.S.C § 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks e"rt1ployment a,s an elementary school teacher for in Maryland.' Since 2008~ the petitioner ha.s . t::mgbt a,t . _ ·Maryland. The petitioner asserts that an exemption from the requiremepJ of a job offer, and th11s of •iiliibQr certification, is in the national interest of the United States. -the director found that the petitioner qualifies for classification as ii men_iber of the professions holding an advanced degree, but that the petitioner has not established that an, ·exemption from the reqyireroent 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 personal statemeni.
Earli~r ' in this proceeding, attorney represented the petitioner. He prepared the Fqi'rtl I~ 140 petition and, lat.er; a response to ii request for evidence (RFE), including a cover letter on his letterhead, and mailed the RFE response from his New York address, riither t.hat1 _from the petitioner;s Maryland address·. Subsequently, however, Mr. did not prepare Or Sign the Fotrn I~290a Notice of AppeaJ; the petitioner,' s personal staterp.ent on appeal includes no mention of legal representation;. and the petitioner mailed the iippeal from her own M_azylii_I:!cl address. Form I-29013 advises that attorneys "must attath a Fonil G-28, Notice of Entry of Appearance as Attorn_ey or Represemative'' to the . iippeai, as ·required by the U~S. Citizenship and Immigration SerVices (USCIS) regulation aJ 8 C.P.R. § 292.4(a). ·· The appeal does not include this form. therefore, the, record contains no indication that Mr. is still the petitioner's attorp:~y ofrecord . The term "prior counsel'' in this decision shall refer to Mr.
Section203(b) of the Act states, in pertinent part:
(Z) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of ExGeptional Abil_i_ty~ -
I
(A) In General. ~ Visas shall be mad.e available ... to ql!alifi~d immigrants who are members of the professions holding advance.d degrees or their eqU.iVale.nt or who · because of their exceptional abillty in the. sciences, arts, or business, \vill substantially bene:(itpros.pectively the national economy, cultural or educational interests, or welfare of the United States, .and whose services i11 the ~ciences, arts, professions, or business are sought by an employer in the Uruted States,
(B) Waiver of Job Offer -
(i) .. . the Attorney General may, wben the Attorney General deems it to be in the national interest, waive the requirements ofsubparagraph (A) that an e:1Jien's p. 3 services in the sciences, arts, professions, or business be sought by an employer in the l)nited States. r
The director did not dispute that the petitioner qualifies ~ ll. member of the professions holding an a<;lvanced degree. 1 The sole issue in contention is whether the petitioner has ~stabhshed that a waiv~r of tb_e,job offer r~quirement, and thus a labor certification, is in'lhe national interest. ' Neither the statute nor the p.ertinent regulations define the term "nation(ll interest." Additionally, Congress did not provide a specific definition 'of "in the national interest." The Cor:runitt~e on the Judiciary merely noted in its report to th.e Senate that the .committee had "focused on national intere'st by increasing the number and proportion of visas for im.mjgr(lllts who would benefit the United States economically and otherwise .... "· S. Rep~ . No. 55, 101 st Cong., 1st Sess., 1l (1989), · Supplementary informatibn to regllbltions implementing the immigration Act of 1990 (IMM.A.CT. 90), Pub.L. 101=649, 104 Stat. 4978, (Nov. 29, 1990), p\lblished at$6 Fed. Reg. 6089'7, 60900 (Nov.
29,/1991), states: - .
The ServiCe Lnow U.S. Citizenship and 'Immigration Services (lJS.CIS)] believes . it appropriate to leave the application of this test as flexiP!e as possible; although dearly an (J.lten . seeking to meet the [national interest] standard must make a showing , significantly above th_c:tt necessary to prove the "prospective national ben~fit" [required of aliens seeking to qua:lify as "exception(ll."] The burden will rest with the . alien to establish . that exemption from, ot waiver of, the job offer will be in tbe ·. national interest. Each case is to be judged on its owrt merits.
In re New York State Dep 't of Transportation (NYSDOT), 22 I&N Pee. 215 (Act. Assoc. Comm'r 1998), has set forth severai factors. which must be considered when evaluating a request for ll. national interest waiver. Fir:st, tbe petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. Next, the · petitioner must show tbat th.~ prqposed benefit will be national in ~cope. Finally, the petitioner must establish that the alien will serve tbe, national interest to a substantially greater degree than would a~ available t.Jllited'States worker haVing the same m.ini.iJ:n.,irp qualifications. While the naticma) interest w"'jver binges on prospective national benefit, the petitiOner rtn.lst establish that the aliert' s past.tecotd justifies projections of future benefit to the national interest. The petitio net's subjective. assuranee that the alien will, in the future~ serve tbe rialionll.l interest cannot suffice to estaJ:>li.sh prospective national benefit. The intention behind the terth "prospective" is to require futwe contril::Jutioris by th.e alien, ratper than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would tll.usbe entirely speculative. I
NON-PREXEDENTDECISION .
The OSCIS 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 atea 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 exception~! ability. Therefore, whether a given alien seeks dassifjcation as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise.
The petitioner filed the Form I-140 petition on February 27, 2012~ In a statement submitted with the initial filing, the petitioner stated:
I served the Philippine public school system for over fifteen years. Being well equipped with skills to coach, I trained the best students to compete for district, division and regional level competitio11s in Science and Campus Journalism. I was named "Outstanding Teacher of the Year" by the administrators and staff members of I passed the rigid selection process for demonstration teacher. 1 garnered the Hest Demonstration Teaching Award (Regional Level) -Project ISIP (Improving Science Instructim:tal Program) granted by the Department of Education-Region III, Philippines as a result of competition frorn the chosen s<;hools in the region ....
In Augttst 2008, I was hired to teach at
Maryland .... To further enhance my skills, I attended s.everal workshops ... •. As · . always, l persevere in achieving the · highest level of competency in the teaching profession. My versatility in teaching is demonstrated through my success in increasing the. reading abilities of my students. I was awarded . for s11perior achievement on Developmental Reading Assessment (DRA) increases Of students.
The instructional approaches that I used have shown consistent progress through data~ driven assessments. As a Kindergarten teacher for three years, I am proud to say that my students can read on-gtade and above .. grade level. Not one stayed below grade level, which means that they are ali prepared for future schooling. Now, being th~ kindergarten grade-level chairperson, I initiate field trips .... An Extended Learning Opportunity (ELO) is also a great accomplishment that our team is offering to qur stUdents who are stl1lggling in Math and Reading. · · The petitioner submitted copies of various certificates she received from and other schools where she has worked. Some certificates named her an "Outstanding Staff Member" an:d "Most Outstanding Teacher," while others recognized specific achievements such as improved student performance and coaching students in regional competitions. Other certif.icl,ltes establish her setvice as a facilitator and speaker at various training sessions and. other gatherings. The petitioner submitted several letters from faculty and administrators of schools where she has worked, as well as parents of her students, a former high school classmate, ~nd the mayor of a city on the Philippines where the petitioner previously worked. These witnesses praised the petitioner's p. 5 abilities and character, but they did not claim that her work has had a significant impact outside of the communities where she has worked.
The petitioner's initial submission established her professional competency and dedication to teaching, but did not address the issue of the national interest waiver.
On July 13, 2012, the director issued a request for evidence, instructing the petitioner to submit evidence to meet the guidelines set forth in NYSDOT. In response, prior counsel asserted that the beneficiary's ''profess1on as [a] 'Highly Qualified Elementary Science Teacher' is national in scope and will impart national.,.level benefits ill improving Elementary Science Education." Prior counsel stated that a decline in the quality of science education in the United States has contributed to the economic recession of the past few years. Establishing the national significance of science education, however, does not mean that the work of one teacher produces benefits that are national in scope. The NYSDOT decision explains: "while education is in the national interest, the impact of a single schoolteacher in one elementary school would not be in the nation_al i11terest for purposes of waiving the job pfJer requirement of section 203(b )(2)(B) of the Act." !d. at 217 n.3. Prior counsel did not address this passage ftom the precedent decision.
Prior counsel stated:
Since a 'National Elementary Science Teacher' is not even' a real concept but more of metaphysical cognition [sic], undersigned wishes to one¢ again posit a realistic proposition upon
Prior counsel contended that the labor certification process presents a ''dilemma" because "the employer is required by No Child Left Behind (NCLB) Law .. , to employ highly qualified teachers," but, by the Department of Labor's standards, school teachers "require only a bachelor's degree." Citing the petitioner's "Master's degree plus over 20 years of experience," prior counsel claimed that the labor certification process "would not meet the objective of employers to hire highly qualified teachers pursuant to No Child Left Behind."
' Section 9101(23) of the NCLBA defines the term "highly qualified" in reference to teachers. Sections 9101(23)(8) and (C) ofthe NCLBA require that a "highly qualified" teacher "holds at least a bachelor's degree." Section 9101(23)(B) of the NCLBA also refers to "highly qualified" teachers who are "new to the profession.'' Thus, neither the petitioner's master's degree nor her experience is required for ''highly qualified" status t.mder the NCLBA. Prior counsel, therefore, did not support the claim tbAt the labor certification process frustrates the NCLBA's mandate for schools to employ "highly qualified teachers." Going on record without Supporting documentary evidence is not sufficient for purposes of meeting . the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCalifornig, 14 I&N Dec. 190 (Reg'l Comm't 1972)).
Prior counsel stated that labor certification "covers only the education and work experience qualifications" of job applicants, and that "even if two (2) teachers have exactly the same education degrees and w~rk experience, their effectiveness cannot be identical.'' Therefore, prior counsel concluded, "the labor certification process would not in MY way [yi~ld] an identically effective Science teacher as" the petitioner. Counsel cited no evidence to support this Claim. The assertions of counsel .do not conStitute evidence. 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). .
Any objective qualifications which are necessary for the performance of the occupation can be articulated in an application for alien labor certification; the fact that the alien is qualified for the job does not warrant a waiver of the job offer/labor certification requirement.
Prior counsel listed various certificates that the petitioner received, and asserted that these materials "established her influence" and therefore ''cannot just be ignored." Prior counsel did not explain how any of the materials demonstrated the petitioner's impact on education beyond the local level. Prior counsel stated that another teacher received a national interest waiver, and asked that the present petition "be treated in the same light." While AAO precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished service center decisions are not similarly binding. See 8 C.F.R. § 103.3(c). Furthermore, priOr counSel provided no evidence to establish that the facts of the instant petition are similar to those in the uppublished decision. the only stated similarity is that the beneficiary of the approved petition is "also a teacher in p. 7 The director denied the petition on February 5, 2013, because the petitioner had met only the "substantial intrinsic merit" prong of the NYSDOT national interest test. On appeal, the petitioner asserts that her father's military service in the United States Navy inspired her desire to immigrate to the United States, and states:
I may not be the. best nor the greatest in my field but I would like to prove that I can be an asset to your, government ...• I gradu~ted Valedictorian in high school, Cum Laude in college and finished my masters .... lbecrune [an] outstanding teacher to my school, district and region in the Philippines and in [the] United States. The petitioner's ability is not avail~ble to most ofthe available U.S. workers. My interest to serve the country, make ail impact to the youth of [the] United .states. of Americ:a and help 'the future of young American[ s] to achieve the highest potential in the realm of Education, inspired me to continue my te_&cbing career.
To qualify for the waiver, one need not "be the best [or] the greatest in [one's] field." In this instance, the petitioner has not established, un<ier t.be gQidelines set forth in NYSDOT, that it is in the national interest to waive the job offer requirement that normally applies to members of th~ professions (such as teachers) holding an advanced degree. The re.cord does not show that the petitioner has had a discernible influence on elementary education beyond the jurisdictions where She has worked. While education is in the national interest, the impact of ~ single schoolteacher in one elementary school would not be in the national interest for purposes Of waiving the job offer requirement. NYSDOT at 217 n.3.
By statute, engaging in a profession (such as teaching) does not presumptively entitle s.uch professionals to the national interest waiver. Congress has not established the existence of any blanket waiver for teachers. Eligibility for the waiver rests not on the b.~sis of the overall importance