Occupation not stated

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 of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file 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, l{Dt(JL-g nc~u

(l 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 1-140, the petitioner seeks employment as an "Elementary Teacher" for At the time of filing, the petitioner was teaching first grade students at the an elementary school in Maryland. 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; 2012 public school progress reports for and 2012 Maryland School Assessment (MSA) Reading results for

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 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 defme the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the p. 3 Judici¥Y 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, 101st 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) (NYSDOI), 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. !d. Finally, the petitioner seeking the waiver must establish that the alien 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 that the alien's past record justifies projections of future benefit to the national interest. !d. at 219. The petitioner's subjective assurance that the alien 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 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. Id.

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 alien's own qualifications rather than with the position sought. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to establish eligibility for a national interest waiver. !d. at 220. Moreover, it cannot suffice to state that the alien 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.

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NON-PRECEDENT DECISION

The petitioner filed the Form I-140 petition on March 27, 2012. In a March 23, 2012 letter accompanying the petition, counsel stated that the petitioner's national interest waiver is based on her expertise as a special education teacher; Master's degree in Education; "fifteen years of dedicated and progressive teaching experience in Early Childhood, Elementary Education and Special Education"; and awards and recognitions. Academic degrees, experience, and recognition for achievements are elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), and (F), 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 ordinarii y encountered in her field of expertise.

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 national interest 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 an 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 petitioner's contributions in the field are of such ~ignificance 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. /d. at 219, n. 6.

The petitioner submitted various letters of support from administrators, teachers, and parents discussing her work as an educator. As some of the letters contain similar claims addressed in other p. 5 letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate the nature of the references' claims.

Principal, stated:

[The petitioner] joined our staff for the school year 2008 and has taught Kindergarten and first grade at _ for the past four years. For the past four year [sic] I have had an opportunity to observe and evaluate her work as well as her potential for growth in her profession.

She has excellent rapport with her students. Her student's [sic] case load consist [sic] of regular education but also resource and Autism students. She shows a sincere interest in them as individuals and is consistently fair in dealing with them. She constantly searches for ways to make her teaching more interesting and more informative. She has great control of her classroom and has never needed assistance from the office in matters of discipline. Her students like and respect her and are pleased to be in her class.

[The petitioner] also relates exceptionally well to her peers, as she is outgoing and exhibits a pleasant and friendly personality. Her appearance is beyond reproach, and her classroom, always brightly decorated, reflects her positive, optimistic attitude about life. I find her very cooperative when assigned special or extra duties including holding the position of Team Leader and Grade Level Chair. She frequently volunteers to cover for her team members when an emergency arises.

Ms. comments on the petitioner's personal qualities and activities as a teacher at _ but does not indicate that the petitioner's work has had, or will continue to have, an impact beyond the students under her tutelage and the local school system that employed her. Third Grade Chairperson and teacher, stated:

[The petitioner] has been an educator at for several years.

[The petitioner] teaches with great passion and her students find her enthusiasm and dedication both inspiring and motivating. As part of the Staff, [the petitioner] has worked hard to build authentic relationships with the parents. Her efforts have created a happier and more productive learning experience for her students.

Besides being a joy to work with, [the petitioner] is a take-charge person who is able to present creative ideas and communicate well with her students and parents.

Ms. comments on the petitioner's effectiveness as an educator, but she does not indicate how the petitioner's impact or influence as an elementary school teacher is national in scope. In addition, p. 6 Ms. fails to provide specific examples of how the petitioner's work has influenced the field as a whole. a parent whose child was taught by the petitioner at stated: _____ __.

[The petitioner] is the teacher of my son since he was in Kindergarten. My son learned a lot from her. I always hear good stories and learning from my son when he comes from school. He is saying the fun stories, lessons and classroom activities they have in the class. These make my son always excited in going to school. I, myself have witness [sic] the progress of my son academically, socially and critical thinking; and that is through the help and patience of her [sic] teacher, [the petitioner]. My son is now in 1st Grade, I could say that he became an achiever because of the encouragement and inspiration that my son experienced in the classroom.

During Parent-Teacher

Conferences and my classroom visits, I have witnessed the success of her students as they learn every lessons. [The petitioner] is indeed a good teacher that molds the minds of these innocent young citizen to be successful. The age level of the children that she is teaching is at sensitive stage but she proves herself that she can influence these children to be a better citizen of the next generation.

Ms. speaks highly of the petitioner's teaching capabilities and states that the petitioner contributed to her son's progress. While Ms. comments indicate that the petitioner works in an area of substantial intrinsic merit, 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.P.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. p. 7 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 benefit 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 support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact").

In addition to the reference letters, the petitioner submitted the following:

1. A Maryland Educator Certificate;

2. A Praxis Series test score report;

3. School Personnel Licensure Certificates from the State of New Mexico for Special Education, Elementary, and Early Childhood;

4. An Arizona Department of Education teaching certificate;

5. A "Professional Teacher Certificate" from the Republic of the Philippines;

6. A "Certification" of "good standing" from the Republic of the Philippines Professional Regulation Commission,

7. A "Certification of Good Standing" from the Republic of the Philippines Professional Regulation Commission, Manila;

8. Degrees and academic transcripts;

9. Employment verifications;

10. A Maryland State Teachers Association membership card;

11. A Maryland State Education Association membership card;

12. A certificate from the principal at . stating that the petitioner "earned the honor of

13. A "Terrific Teacher Award" certificate from the principal at "for the 2008-2009 School Year";

14. A "Teacher of the Month" certificate from the principal at for the month of December 2011;

15. A "Teacher of the Month" certificate from the principal at for the month of October 2008;

16. A certificate from the principal at stating that the petitioner "served as Chairperson of the Kindergarten Team 2009-2010 School Year";

17. A Certificate of Recognition from the principal of _ (where the petitioner taught from 2000 - 2004) for "personal commitment and dedication to the Grade One Team as the Grade Chairman for the school year 2002-2003";

18. A Certificate of Recognition "for his/her exemplary performance as contestant/coach FIRST PLACE - during the held at . "·

' 19. A Certificate of Recognition from the District Supervisor, for "1st place in the Dist. Oral Reading Test during the 2002-2003 DISTRICT EVALUATION on Classroom Facilities";

20. A Certificate of Recognition from the District Supervisor, for "1st place in the Dist. Achievement Test during the 2002-2003 DISTRICT EVALUATION on Classroom Facilities";

21. A Certificate of Recognition "as Winning Coach in Science during the Division Academic Contest held at on

December 31, 2002";

22. A Certificate of Recognition "as Winning Coach in Storytelling during the Division Literary and Musical Contest held at on December 31, 2002";

23. A Certificate of Recognition "for Outstanding Performance as school paper Adviser/Coach during the 1st Division Schools Press Conference held at on October 28-30, 2002";

24. A "2002 Division Math Champion Coach Award" for "invaluable services and support for the Division Math Contest held at on October 15, 2002";

25. A Certificate of Appreciation "for having actively participated as a coach/contestant in the 2002 DIVISION POSTER MAKING CONTEST ... held at (September 23, 2002);

26. A Certificate of Recognition "for his/her exemplary performance as TRAINER during the Division Seminar-Workshop on SPED (Gifted) at __________ _ on February 12-13, 2003";

27. A "Certificate of Excellence" from the Maryland Chapter of the "for sharing her expertise in INCLUSION:

28. A Certificate of Recognition from the District Supervisor, for "services rendered as MANAGER in the District Math Instrumentation Orientation" (February 15, 2006);

29. A certificate awarded to the petitioner's class by the principal at for "attaining the most feathers for good behavior for the month" (December 2011);

30. A certificate awarded to the petitioner's class by the principal at for "attaining the most feathers for good behavior for the month" (November 2011);

31. A Certificate of Recognition from the Principal, _ and the District Supervisor, for "untiring support extended to the (April 3, 2011);

32. A Certificate of Appreciation from the Pastor of _ for support of the church's 4th of July celebration in 2011; and 33. A certificate from the principal at for "Perfect Attendance for Quarters 1 & 3 2010-2011 School Year").

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 p. 9 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 12 - 33) have more than local, regional, or institutional significance. There is no documentary evidence showing that items 1 through 33 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 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 special education teachers and how her specific work has had significant impact outside of the schools where she has taught.

In addition, the petitioner submitted numerous certificates of participation and completion 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. The director issued a request for evidence on August 9, 2012, instructing the petitioner to submit evidence to establish that her "past record justifies projections of future benefit to the nation" and that she "has ,a past record of specific prior achievement with some degree of influence on the field as a whole."Argued the field's importance, not the endeavor's

In response, the petitioner submitted a 2009 article in the Wall Street Journal entitled "The Importance Math & Science in Education"; an article entitled "Importance of Science and Math Education"; an article entitled "STEM Sell: Are Math and Science Really More Important Than Other Subjects?"; 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); 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 Supreme Court of the United States about Brown v. Board of Education, 347 U.S. 483 (1954); Title I of the Elementary and Secondary Education Act; 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"; a report entitled "Special Education Teacher Retention and Attrition: A Critical Analysis of the Literature"; and an abstract for a report entitled "SPeNSE: Study of Personnel Needs In Special Education." 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 alien 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 and special educator has influenced the field as a whole.

The director denied the petition on December 9, 2012. 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 p. 10 United States. The director indicated that the petitioner had not shown that the benefits of her work as a teacher "will be national in scope." The director also determined that the petitioner had failed to demonstrate that she will "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 gtvmg insufficient weight to the national educational interests enunciated in the No Child Left Behind Act [NCLBA] 2001." Counsel notes 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 elementary school special education sector."

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. As 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 p. 11 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 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, n.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 The 2012 MSA 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's appellate submission includes 2012 MSA Reading results for public schools, and 2012 public school progress reports for The petitioner has worked for since 2008, 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 systems 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 of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. In addition, counsel contends that NYSDOTs guidelines amount to "hypotheticals [that] hold no water." With regard to following the guidelines set forth in NYSDOT, by law, USCIS does not have the discretion to ignore binding precedent. See 8 C.P.R. § 103.3(c).

Counsel points to the petitioner's award certificates (items 12- 33) as evidence of her "past history of achievement." As previously discussed, the petitioner's awards are institutional, local, or regional in nature, and they do not show that her work has had a wider impact on the field of education. There is no documentary evidence demonstrating that any of the awards received by the petitioner are national in scope and indicative of her influence on 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 ofOtiende, 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 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 observed that the petitioner's evidence does not show that the petitioner's work will "specifically benefit the national interest of the United States to a substantially greater degree than a similarly qualified U.S. worker."

Counsel asserts 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 p. 13 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 asserts that "59% [of] special educators in the nation [hold] a Master's degree," and "92% [of] special educators [have] full certification." These numbers indicate that nearly three out of five special educators in the United States possess professional credentials comparable to those of the petitioner. According to counsel's statistics, the petitioner's credentials do not readily stand apart from those of most others in her field.

Counsel cites to studies pointing to high turnover rates and inexperience among special education teachers. As the alien employment certification process was designed to address the issue of worker shortages, a shortage of qualified workers in a given field does not establish eligibility for the national interest waiver.Relied on a labor shortage 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 submitted by the petitioner shows that there is a demand for credentialed special education teachers, a demand that the labor certification process can address.

Counsel asserts that the labor certification process poses a "dilemma" for the petitioner because she possesses qualifications above the minimum required for the job she seeks. Counsel states that the labor certification guidelines "require only a bachelor's degree," and therefore "may not meet the objective of employers to hire highly qualified teachers pursuant to No Child Left Behind." On page 11 of the appellate brief, however, counsel acknowledges that the statutory definition of a "Highly Qualified Teacher" requires only a bachelor's degree and state certification.

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") 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.

All states offer an alternative route to certification for people who already have a bachelor's degree but lack the education courses required for certification. Some alternative certification programs allow candidates to begin teaching immediately, under the close supervision of an experienced teacher.

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." Thus, the petitioner's level of education and experience are not required for "highly qualified" status under the NCLBA. Counsel, therefore, did not support the claim that the labor certification process frustrates the NCLBA's mandate for schools to employ "highly qualified teachers."

Counsel 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 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 special educators 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. Again, 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 that would justify a waiver of 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. /d. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." /d. 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.