dismissed EB-2 NIW Case: Aircraft Maintenance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WLY 20, 2023 In Re: 27437379 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an aircraft maintenance technician , seeks classification as an individual of exceptional 
ability in the sciences , arts or business . See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the 
Act, 8 U.S.C. § 1153(b )(2)(B)(i) . U.S . Citizenship and Immigration Services (USCIS) may grant this 
discretionary waiver of the required job offer , and thus of a labor certification, when it is in the national 
interest to do so. 
The Director of the Texas Service Center denied the petition , concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability. The Director further concluded that 
the Petitioner had not established that a waiver of the required job offer , and thus of the labor 
certification , would be in the national interest. The matter is now before us on appeal. 8 C.F.R . 
§ I03.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences , arts, or business . Section 203(b )(2) of the Act. For the purpose 
of determining eligibility under section 203(b )(2)(A) of the Act, "exceptional ability " is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences , arts, or business ." 
8 C.F.R. § 204.5(k)(2) . The regulations further provide six criteria, at least three of which must be 
satisfied , for an individual to establish exceptional ability: 
(A) An official academic record showing that the [ noncitizen] has a degree, 
diploma, certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the [noncitizen] has at least ten years of foll-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the [noncitizen] has commanded a salary, or other renumeration 
[sic] for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
8 C.F.R. § 204.5(k)(3)(ii). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides, "If the above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
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II. ANALYSIS 
The Director concluded that the record satisfies at least three of the six exceptional ability criteria at 
8 C.F.R. § 204.5(k)(3)(ii). More specifically, the Director found that the record satisfies the criteria 
at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(C). The Director specifically concluded that the record does not 
satisfy the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E)-(F), without commenting on the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). The Director then conducted a Kazarian final merits determination of the record, 
concluding that it does not establish the Petitioner has a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business. 
For the reasons discussed below, we withdraw the Director's conclusion that the record satisfies the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). Furthermore, we withdraw the Director's conclusion that 
the record satisfies at least three of the six exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). The 
Petitioner does not assert on appeal-and the record does not support the conclusion-that the 
Petitioner satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(D)-(F), in addition to the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(B). Because a petitioner must first satisfy at least three of the six exceptional 
ability criteria at 8 C.F.R. § 204.5(k)(3)(ii) and, in this case, the Petitioner has not satisfied the requisite 
number of criteria, we need not address whether the record establishes the Petitioner has a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from current 
or former employer(s) showing that the [noncitizen] has at least ten years of foll-time experience in 
the occupation for which he or she is being sought." In this case, as noted above, the occupation the 
Petitioner seeks for himself as a self-petitioner is an aircraft maintenance technician. Initially, in 
support of the Form 1-140, Immigrant Petition for Alien Workers, the Petitioner submitted four letters 
from current or former employers; however, only one of the letters specified whether the Petitioner 
had full-time experience during his employment, as required by the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). Specifically, the record contains a one-page letter, written in English, dated 
March 2020, from the engineering manager ofl Iaddressed to "FAA 
Administrator." The letter asserts that the Petitioner has worked as an aircraft maintenance technician 
for~-----------~ located in Venezuela, "from 01/18/2016 until the present ... 
under our supervision on a foll-time [sic]." Beyond the position's title, the letter describes the duties 
the Petitioner performs, which are consistent with the occupation for which he seeks as a self-­
petitioner. Therefore, the letter asserts that the Petitioner has approximately four years and one month 
of foll-time experience in the occupation for which he seeks. 
Also in support of the Form 1-140, the Petitioner submitted one-page letters froml land 
I I each written in a language other than English, and accompanying English translations. The 
letter from I I as translated in the record, states that the Petitioner "carried out work as a technical 
assistant during his internship period between 01/24/97 and 03/25/97, in the different workshops and 
departments of the company." Next, the letter froml Idated December 1996, as translated in the 
record, states that the Petitioner "perform[r] the !position of Trainer ... from 01/09/1996 to the 
present date." We 
I 
note 
I
that the letter from does not specify when, if at all, the Petitioner's 
employment at ceased. In turn, the undated letter from A viatest states that the Petitioner 
"provides services ... serving as NDT Inspector ... [s]ince May 2, two thousand and three." 
However, none of the letters indicate whether the Petitioner's experience as a technical assistant, 
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trainer, or NDT inspector, respectively, were on a full-time basis, as required by the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(B). Furthermore, none of the letters from I Ias 
translated in the record, describe the duties the Petitioner perform( ed), in order to establish whether 
his experience is in the occupation for which he seeks as a self-petitioner, as required by the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
In response to the Director's request for evidence (RFE), the Petitioner submitted a new employment 
verification letter, written in English, dated October 2022, from the co-founder and director of
I I The letter asserts that the Petitioner, as a co-founder and general manager, has 
worked forl Ilocated in Venezuela, "on a full-time basis and uninterruptedly ... 
since the company was established on October 06, 2006, until the present time." Beyond the position's 
title, the letter describes the duties the Petitioner performs, which are consistent with the occupation 
for which he seeks as a self-petitioner. Therefore, the letter asserts that the Petitioner had 
approximately 14 years of full-time experience in the position for which he seeks as a self-petitioner 
as of the November 2020 petition filing date. We note that the Petitioner also asserted in response to 
the RFE, "In 2017, seeking to expand my work to the United States, I opened my own U.S. [c]ompany, 
dedicated to being a commercial office of my Venezuelan [ c ]ompany and ~-------~ serving several airlines and FAA repair stations in the United States." Relatedly, the Petitioner 
submitted articles of incorporation for the U.S. company dated 2017, bearing an address in Florida. 
The record contains information that is inconsistent with the relevant letters of employment, 
undermining their veracity. On the Form I-140, the Petitioner provided an address in the United States 
and he further stated that the date of his last arrival in the United States was in November 2019, prior 
to the dates of the letters from.__ ____________________ ____, discussed 
above. The record does not reconcile how the Petitioner could have accrued full-time experience 
working for~------------------------' both located in Venezuela, 
"until the present" and "until the present time," to wit March 2020 and October 2022 respectively, 
when he had departed Venezuela and entered the United States in 2019. Specifically, the letter letters 
list duties that require physical presence and they purport that the Petitioner has performed those 
duties. The letter from ~------------~asserts that the Petitioner "has been 
performing many maintenance functions which include but are not limited to . . . removal and 
installation of [numerous aircraft components]," "[s]ervicing and replenishing of hydraulic and oil 
systems," and other duties that require physical interaction with aircraft. Similarly, the letter from 
I I asserts that the Petitioner's duties, which he performed "on a full-time basis and 
uninterruptedly," include performing "non-destructive tests on aircraft structures, engines, and 
components," ensuring "that the precision equipment and tools are calibrated at the time of use [and] 
the maintenance of all equipment and tools so that they are always serviceable," maintaining "facilities 
in a clean and orderly condition to prevent accidents and damage by external objects," properly 
"handl[ing] all parts and pieces under inspection, ensuring their preservation during their stay," and 
other duties that require physical interaction with aircraft, equipment, and facilities located in 
Venezuela. 
The Petitioner's stated physical presence in the United States casts doubt on the letters that purport he 
performed duties on a full-time basis for two companies located in Venezuela that require physical 
interaction with aircraft, equipment, and facilities located therein. Furthermore, we note that the record 
does not reconcile how the Petitioner could have performed aircraft maintenance tasks for both the 
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company he co-founded and another company, simultaneously, on a full-time basis, since January 
2016, which casts additional doubt on the veracity of the letters' claims in general. Doubt cast on any 
aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988). 
Because the Petitioner's physical presence in the United States undermines the veracity of the letters 
that purport he accrued full-time experience while working in Venezuela at the same time, the letters 
bear minimal probative value and they are insufficient to establish that he has at least 10 years of full­
time experience in the position he seeks as a self-petitioner, as required by the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). See id. 
In light of the foregoing, the record does not establish that the Petitioner has at least 10 years of full­
time experience in the position he seeks as a self-petitioner, as required by the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). Therefore, we withdraw the Director's conclusion that the record satisfies the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and, because the Petitioner does not assert on appeal-and 
the record does not support the conclusion-that the record satisfies criteria other than 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (C), we furthermore withdraw the Director's conclusion that the record 
satisfies at least three of the six exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
In summation, the Petitioner has not established that the record satisfies at least three of the exceptional 
ability criteria; therefore, we need not determine whether the record shows sustained national or 
international acclaim and demonstrates that the individual is among the small percentage at the very 
top of the field of endeavor. See section 203(b )(2)(A) of the Act; see also 8 C.F.R. § 204.5(k)(2); 
Kazarian, 596 F.3d 1115. We note, however, that if we were to conduct a final merits determination 
of the record, it would not support the conclusion that the Petitioner shows sustained national or 
international acclaim and demonstrates that he is among the small percentage at the very top of the 
field of endeavor. Furthermore, because the record does not establish that the Petitioner satisfies at 
least three of the exceptional ability criteria, it does not establish that he qualifies for second-preference 
classification as an individual of exceptional ability. See section 203(b )(2)(A) of the Act. We reserve 
our opinion regarding whether the Petitioner satisfies any of the criteria set forth in Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to 
reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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