dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 24, 2024 In Re: 30336042 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a commercial airline pilot, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, as well as a national interest waiver of 
the job offer requirement attached to this classification. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he was eligible for the requested classification or that a waiver of the classification's job 
offer requirement, 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 Christo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de novo review, we will dismiss the appeal because the Petitioner did not establish that he is 
eligible for the requested classification or that his proposed endeavor has national importance and thus, 
he did not meet the national importance requirement of the fust prong of the Dhanasar framework. 
See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Because this identified basis for denial is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate 
arguments regarding the remaining Dhanasar prongs. 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 l&N Dec. 516, 526 n.7 (BIA 2015) ( declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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)(B)(i) of the Act. Exceptional 
ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at 
least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If a petitioner 
does so, we will then conduct a final merits determination to decide whether the evidence in its totality 
shows that they are recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once eligibility for the underlying EB-2 classification is established, a petitioner must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion,3 grant a national interest waiver if 
the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
TT. EXCEPTIONAL ABILITY 
The first issue to be addressed is whether the Petitioner established his eligibility for EB-2 
classification. The Petitioner claims eligibility as an individual of exceptional ability. 4 The Director 
determined that the record suggested that the Petitioner met three of the six criteria within the 
exceptional ability determination. However, the Director concluded that, while the Petitioner has an 
academic record equivalent to a U.S. bachelor's degree, at least ten years of full-time experience as a 
commercial pilot, and a license, the evidence did not support a finding that the Petitioner has expertise 
significantly above that which is ordinarily encountered in the profession. Therefore, in a final merits 
analysis, the Director determined that the evidence did not establish the Petitioner's eligibility as an 
individual of exceptional ability. 
On appeal, the Petitioner disagrees with the Director's decision and, relying on evidence already in 
the record, addresses each of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) that he asserts establish his 
eligibility. He states that the Director "targets specific pieces of evidence" and misapplies the 
appropriate standard of review for a final merits determination. 
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 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
4 The Petitioner has not asserted at any time in these proceedings that he is a member of the professions holding an advanced 
degree. 
2 
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. 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 the petitioner possesses exceptional ability. 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 of Chawathe, 25 I&N Dec. at 376. 
The Director fully analyzed and discussed the evidence in the record, considering the totality of the 
evidence in conducting a final merits determination of the Petitioner's eligibility. In our de novo 
review of the Petitioner's eligibility for the underlying classification, we agree with the Director and 
conclude that the Petitioner has not established that he is an individual of exceptional ability. 
Therefore, we adopt and affirm this portion of the Director's decision. See Matter ofBurbano, 20 I&N 
Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting that the 
practice of adopting and affirming the decision below has been "universally accepted by every other 
circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight 
circuit courts in holding that appellate adjudicators may adopt and affirm the decision below as long 
as they give "individualized consideration" to the case). 
III. NATIONAL INTEREST W AIYER 
The Petitioner states that he is an experienced and skilled airline pilot with licenses in multiple 
countries and over 11 years of experience in the aviation field, operating and training others on a wide 
array of aircraft. His proposed endeavor is to continue working in aviation to fill pilot positions in the 
United States and train current aviation professionals. He states, "I can work as a Commander 
(Captain); Co-Pilot; Instructor for airlines, aviation schools, or universities; Private Pilot; Training 
Manager; Flight Standards, Safety, or Simulator Instructor." The Petitioner has created his own 
companyJ Ithrough which he plans to offer educational programs to partners, including 
"Aviation Academies, Colleges, Universities, U.S. Airlines, Pilot Unions, Aviation Consultancy 
Groups, Fixed-Base Operators, National Airports, and the FAA (Federal Aviation Administration)." 
With the initial filing the Petitioner submitted evidence of his education and experience, and a personal 
statement describing his proposed endeavor and claimed eligibility for a national interest waiver. He 
also submitted recommendation and support letters, and industry reports and articles discussing the 
aviation industry and the shortage of pilots in the United States. 
Following initial review, the Director issued a request for evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish his eligibility for the requested 
classification and for the national interest waiver. The Petitioner's response to the RFE includes, in 
3 
part, additional recommendation and support letters, additional articles about the aviation industry, an 
additional personal statement, a business model, and an expert opinion letter. 
After reviewing the Petitioner's RFE response, the Director determined that the Petitioner had 
submitted sufficient evidence to demonstrate that his proposed endeavor has substantial merit. 
However, she concluded that the Petitioner had not demonstrated that his proposed endeavor had 
national importance, or that he is well-positioned to advance his proposed endeavor. The Director 
further concluded that further analysis of the third prong of the framework of Matter of Dhanasar, 
whether on balance it would be beneficial to the United States to waive the requirements of a job offer 
and thus of the labor certification, would serve no meaningful purpose. The Director specifically noted 
that the record did not "document how [the Petitioner] plans to create his 'aviation education 
programs' ... nor does it demonstrate how doing this will provide substantial economic benefits to the 
field, as a whole." Additionally, the Director noted that the record did not demonstrate that the 
Petitioner's knowledge and experience in aviation "has generated positive discourse in the field which 
renders him well positioned to advance his proposed endeavor." 
A. Substantial Merit and National Importance 
As noted above, the Director determined that while the Petitioner established that the proposed 
endeavor has substantial merit, he did not establish that the proposed endeavor is of national 
importance as set forth under the first prong of the analytical framework of Matter ofDhanasar, 26 
I&N Dec. 884. We agree, for the reasons explained below. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Id., at 889. 
Upon review of the entire record, we conclude that the Director properly reviewed the provided 
evidence and analyzed the Petitioner's national importance claims under the first prong of Dhanasar 
using the preponderance of the evidence standard. The Petitioner has not met his burden of proof and 
provided probative, relevant, and credible evidence establishing the national importance of his 
endeavor. Matter ofChawathe, 26 I&N Dec. at 376. 
The Petitioner relies on the importance of the aviation industry and the shortage of pilots in the United 
States as evidence of the importance of his endeavor. 5 However, as explained by the Director, the 
importance of an endeavor is determined not by the industry or occupation it involves, but by what its 
specific impact will be. Matter ofDhanasar, 26 I&N Dec. at 889-890. For example, an endeavor may 
qualify if it has national implications within a particular field or if it has significant potential to have 
a substantial economic effect, especially in an economically depressed area. Id. 
5 We further note that the Department of Labor directly addresses U.S. worker shortages through the labor certification 
process. Therefore, a shortage of qualified workers in an occupation is not sufficient, in and of itself, to establish that 
workers in that occupation should receive a waiver of the job offer requirement. See Matter ofDhanasar , 26 I&N Dec. at 
885; see also 20 C.F.R. § 656.1. 
4 
In Dhanasar, we found that while the noncitizen's work as a science teacher had substantial merit, it 
did not qualify him under the first prong because the evidence did not show how that work would 
impact the field of science education more broadly. Id. at 893. We agree with the Director that in this 
instance, the Petitioner has not provided sufficient information about his endeavor to establish what 
its impact on the field of aviation would be. 
According to the Petitioner's personal statement, his "proposed endeavor in the United States is to 
offer [his] expertise ... to pursue positions within U.S. airline companies ... ". However, the purpose 
of the national interest waiver is not to facilitate a petitioner's U.S. job search. Anyone seeking such 
a waiver must identify "the specific endeavor" that they propose to undertake. Id. at 889. See 
generally 6 USCIS Policy Manual F.5(D)(l), https://www.uscis.gov/policymanual ("The term 
'endeavor' is more specific than the general occupation; a petitioner should offer details not only as 
to what the occupation normally involves, but what types of work the person proposes to undertake 
specifically within that occupation."). Here, the Petitioner has not sufficiently described his proposed 
endeavor, and his claims that his employment as a pilot and flight instructor "will support millions of 
jobs all over the world" are insufficient to establish how his endeavor's impact will extend beyond his 
customers and employers to the broader aviation field. 
We further agree with the Director that the evidence and arguments regarding the Petitioner's skills as 
a pilot relate to the second Dhanasar prong, which concerns the Petitioner's ability to advance his 
proposed endeavor. Id. at 890. They do not establish what impact that endeavor would have. 
The Petitioner also references an expert opinion prepared by I I of the I I
I I We acknowledge that the expert opinion includes an analysis of the national importance 
of the Petitioner's proposed endeavor. In his analysis! Igenerally describes the Petitioner's 
experience and provides facts and statistics on the airline industry. He states generally that the 
Petitioner's proposed endeavor "has significant potential to employ U.S. workers and has other 
substantial positive economic effects." However, I Idoes not discuss the details of the 
Petitioner's specific proposed endeavor, including how its employment of U.S. workers and other 
economic effects will have a potential prospective impact rising to the level of national importance. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject 
an opinion or give it less weight if it is not in accord with other information in the record or if it is in 
any way questionable. Id. We are ultimately responsible for making the final determination regarding 
an individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. 
Here, the advisory opinion is of little probative value as it does not meaningfully address the details 
of the Petitioner's specific proposed endeavor and why it would have national importance. His opinion 
is general in nature, emphasizing the Petitioner's qualifications and concluding that the aviation 
industry is of national importance. "In determining national importance, the officer's analysis should 
focus on what the beneficiary will be doing rather than the specific occupational classification." 6 
USCIS Policy Manual F.5(D)(l), https://www.uscis.gov/policy-manual (emphasis added).
I I does not provide a substantive analysis of the Petitioner's specific proposed endeavor or 
suggest that the Petitioner's skills differ from or improve upon those already available and in use in 
the United States. 
5 
The record does not indicate that the Petitioner's endeavor will have national implications for the field 
of aviation. It also does not quantify what economic benefits the endeavor will generate, particularly 
in a depressed area, and so does not show that the endeavor will result in "substantial positive 
economic effects" as contemplated by Dhanasar. Id. Therefore, the Petitioner has not established 
that his endeavor will have national importance. 
The Petitioner continues to rely upon the asserted merits of the services he will provide, his personal 
and professional qualities and achievements, and the general demand for commercial pilots. However, 
as set forth above, the evidence does not sufficiently demonstrate the proposed endeavor's national 
importance. Therefore, we conclude that the Petitioner has not met the requisite first prong of the 
Dhanasar framework. 
As the Petitioner has not established the national importance of his proposed endeavor as required by 
the first prong of the Dhanasar framework, he is not eligible for a national interest waiver and further 
discussion of the balancing factors under the second and third prongs would serve no meaningful 
purpose. As noted above, we reserve the Petitioner's appellate arguments regarding the remaining 
Dhanasar prong. 6 See INS v. Bagamasbad, 429 U.S. at 25. 
III. CONCLUSION 
The Petitioner has not established that he is eligible for classification as an individual of exceptional 
ability or that he is otherwise eligible for EB-2 classification. Additionally, as the Petitioner has not met 
all of the requisite three prongs set forth in the Dhanasar analytical framework, we conclude that he has 
not established he is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
6 Even ifwe had addressed the remaining issues, we still would have dismissed this appeal. As noted above, the Director 
concluded that, although the proposed endeavor has substantial merit, the Petitioner did not establish its national 
importance, or that he is well-positioned to advance the proposed endeavor. On appeal, the Petitioner references the same 
supporting evidence submitted with the original petition and RFE response. The Director addressed the previously 
submitted evidence in the RFE and decision, and explained how it was deficient in establishing that the Petitioner met the 
Dhanasar prongs and would be eligible for a national interest waiver. The Petitioner's assertions on appeal do not establish 
that he meets all of the three Dhanasar prongs. 
6