dismissed EB-2 NIW Case: Aircraft Maintenance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 5, 2024 In Re: 29344933 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an aircraft maintenance technician in the aviation industry, seeks second preference 
immigrant classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. Immigration and Nationality Act (the Act) section 203(b)(2), 
8 U.S.C. § 1153(b )(2). 
The Director of the Nebraska 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. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&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 
A. The Petitioner Is Not An Individual of Exceptional Ability 
The Director concluded that the record does not satisfy 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 Petitioner fulfilled 
the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (C) and we agree with that determination. On appeal, 
the Petitioner asserts that the Director's decision was erroneous, and maintains that he also meets the 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B), (E) and (F) pertaining to ten years of full-time experience in 
the occupation, membership in professional associations, and recognition for achievements and 
significant contributions. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
noncitizen has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The letters purporting to support the Petitioner's work experience in the specialty do not adequately 
reflect at least 10 years of full-time experience. The Petitioner notes on appeal he submitted letters 
from.___________________ _. that represented the employers he provided 
services to for an aggregate period of 10 years. However, as noted by the Director, the services 
provided to I I commenced in July 2022 until the present, a time period after the current 
petition was filed in April 2021. The regulation requires the Petitioner to earn 10 years of full-time 
work experience at the time of filing. Since the work experience at I I occurred after 
the time of filing, this time is not eligible to show at least 10 years of full-time experience at the time 
of filing. The Petitioner must establish eligibility at the time of filing the petition and must continue 
to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. 
See Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
Furthermore, the Petitioner's work ex
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erienc
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atl Iwas for a total time of 2 months and 17 
days, and the total work experience at was under 8 years. Moreover, the Petitioner spent over 
11 months atl lin an internship rather than a full-time professional experience as an aircraft 
mechanic. The Petitioner's evidence is not sufficient to establish that the Petitioner has the requisite 
10 years of full-time experience in his occupation. On appeal, the Petitioner did not provide any 
documentation or evidence to overcome the Director's concerns. Accordingly, we conclude the 
evidence 1s insufficient to establish eligibility under the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(B). 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted evidence that he is an active member of the '------------' 
._____________ ___. since February 2021, a date prior to the filing of the instant petition. 
The Petitioner submitted print-outs of order receipts of the Petitioner's regular I I membership 
dated February 28, 2021, June 12, 2022 and July 7, 2023. The Petitioner also submitted copies of his 
membership cards. The documentation establishes he is an active member of1 I 
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However, the limited evidence presented is not sufficient to demonstrate thatl Ihas a membership 
body comprised of individuals who have earned a U.S. baccalaureate degree, or its foreign equivalent, 
or that the organization otherwise constitutes a professional association. 1 The evidence includes a 
print-out ofi Ibylaws, which states that to be eligible for a regular membership, an applicant 
must be certificated under Federal Aviation Administration Title 14 Code of Federal Regulations part 
65, subpart D- Mechanics or Subpart E- Repairman, or foreign national aviation authority equivalent, 
or hold a Federal Communications Commission General Radio and Telephone certificate. This 
information alone is not sufficient to establish I I membership body has the necessary 
qualifications under this criterion. Membership in this association is not sufficient to demonstrate the 
Petitioner's membership in a professional association as required by the regulation. 
Evidence ofrecognition 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)(F). 
The Petitioner submitted several letters of recommendation to demonstrate that he has been recognized 
for achievements and significant contributions to their field by peers, governmental entities or 
professional or business organizations. But the evidence the Petitioner submitted did not meet the 
standard of proof because it did not satisfy the basic standards of the regulations. See Matter of 
Chawathe, 25 I&N Dec. at 3 7 4 n. 7. The regulation requires evidence of recognition of achievements 
and significant contributions. When read together with the regulatory definition of exceptional ability, 
the evidence of recognition of achievement of significant contributions should show expertise 
significantly above that ordinarily encountered in the field. 
The Petitioner's letters of recommendation are written by previous employers and colleagues. The 
Petitioner asks us to conclude the writers' conclusions alone constitute recognition of achievements 
and significant contributions. But these statements are not supported by any evidence in the record 
which reflects that these letters represent noteworthy achievements and significant contributions. The 
letters described the Petitioner's character, work ethic, and other positive qualities like he is an "asset," 
"conscientious," "worked well with his co-workers," and "demonstrated great commitment." In 
general, the letter writers indicated the Petitioner was a person of genial character and a conscientious 
worker. But the Petitioner's genial character and good work ethic are not achievements or significant 
contributions to their field of endeavor. While the letters discuss the Petitioner's professional skills 
and job experience, this evidence does not show that his work has been recognized beyond his 
employers and clients and their specific projects at a level indicative of "achievements and significant 
contributions to the industry or field." We therefore agree with the Director that the Petitioner has not 
established that he fulfills the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least 
three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for 
exceptional ability classification. The Petitioner, therefore, is not eligible for classification as an 
individual of exceptional ability in the sciences, art, or business. 
1 The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the 
occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry in the occupation." 
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B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. The Director determined that although the 
Petitioner's proposed endeavor has substantial merit, the record did not establish that the Petitioner's 
proposed endeavor has national importance or that it would be beneficial to the United States to waive 
the requirements of a job offer and, thus, of a labor certification. As the Petitioner has not established 
the threshold requirement of eligibility for the EB-2 classification, farther analysis of his eligibility 
for a national interest waiver under the Dhanasar framework is unnecessary. 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding his eligibility for a discretionary waiver 
under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the 
ultimate decision); see also Matter of L-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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