dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 5, 2023 In Re: 28819054 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree. 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. The Director did not indicate clearly 
whether the Petitioner qualifies for classification as a member of the professions holding an advanced 
degree. However, the Director 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 Christo 's, Inc., 26 l&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 a member of the professions holding an advanced 
degree or an individual of exceptional ability in the sciences, arts, or business. Because this 
classification requires that the individual's services be sought by a U.S. employer, a separate showing 
is required to establish that a waiver of the job offer requirement is in the national interest. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that the noncitizen is well positioned to advance the proposed 
endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements 
of a job offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
As noted above, the Director did not clarify whether the Petitioner qualifies for second-preference 
classification as a member of the professions holding an advanced degree. See section 203(b )(2) of 
the Act. The Director stated that a diploma in the record "has been accurately described as a foreign 
equivalent to a Master's degree in the United States." However, the Director continued, stating, "The 
fact is that the [P]etitioner does not have the requisite experience." The Director did not clarify the 
materiality of the Petitioner's experience if the Director concluded that the Petitioner possesses a 
qualifying degree. Because we nevertheless find that the record does not establish that a waiver of the 
requirement of a job offer, and thus of a labor certification, would be in the national interest, we reserve 
our opinion regarding whether the Petitioner satisfies second-preference eligibility criteria. See id.; 
see also 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"); 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). 
Initially, the Petitioner described the endeavor as a plan to "to be useful and improve myself in two 
areas such as engineering and pilot perspective." The Petitioner stated that he "will try my best to join 
the team of one of the best aircraft manufactures [sic] in the US such as ~--------~ ~------------~" The Petitioner elaborated that he "can assist them with flight 
testing and product enhancement ... us[ing] my experience to find solutions to current aviation 
problems and improve the safety of flying." The Petitioner specified that he "would like to be a focus 
[sic] on business airplanes and charters." The Petitioner added that he "would like to help to create, 
build, and test the systems [that] manage traffic [ and] approach the landing of airplanes safely without 
human control" for unmanned aircraft. The Petitioner farther stated that he "would like to create a 
new flight course for flight instructors with an entirely new syllabus that will be based on my flight 
instructor experience and then get FAA approval for it." The Petitioner also provided generalized 
information regarding the aviation industry. 
In response to the Director's request for evidence (RFE), the Petitioner reiterated that he "would like 
to work for [a commercial airline for] about 3 years and get about 2000 flight hours [then] make 
another step forward and join ... one of the influential manufactures with work of creation the future 
design aircrafts, airframes, engines etc. [sic]." However, the Petitioner also stated, in response to the 
RFE, for the first time that he "plan[ s] to create the course and open my own flight school on the side 
of my flight testing and engineering career." He asserted that his flight school "will be able to train 
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the active pilot on every level and flight instructor on the cutting edge." The Petitioner also reiterated 
generalized information regarding the aviation industry in response to the RFE. 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
We acknowledge that the Petitioner initially expressed a plan "to create a new flight course for flight 
instructors with an entirely new syllabus that will be based on my flight instructor experience." 
However, the Petitioner did not indicate at the time of filing that his proposed endeavor would entail 
founding his own flight school. Because the Petitioner did not indicate at the time of filing that his 
proposed endeavor would entail founding his own flight school, those assertions in response to the 
RFE present a new set of facts. Whether the Petitioner would found his own flight school is material 
to the first Dhanasar prong because the scope of the proposed endeavor affects whether it may have 
the type of broader implications contemplated by Dhanasar. See Dhanasar, 26 I&N Dec. at 888-90. 
Because the Petitioner presented a new set of material facts in response to the RFE, those new facts 
relating to a plan to "open my own flight school on the side of my flight testing and engineering career" 
cannot-and do not-establish eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 
14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. 
The Director concluded that the record does not establish "that the specific endeavor [the Petitioner] 
proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial 
positive economic effects," referencing Dhanasar, 26 I&N Dec. at 888-90. The Director 
acknowledged that the Petitioner's instructional goals may benefit his students; however, the Director 
observed that the record does not establish that his teaching plans "will be adopted or implemented on 
a level that creates national or even global implications in the aviation industry." The Director further 
noted that the record does not establish how the Petitioner's instructional goals may "resolve the 
shortage [ of pilots, as the Petitioner asserted] or produce an impact that rises to the level of national 
importance." The Director concluded that the record, in its entirety, does not establish that the 
proposed endeavor has national importance, as required by the first Dhanasar prong. See id. The 
Director further concluded that the record does not satisfy the second and third Dhanasar prongs; 
however, the Director did not clearly indicate whether the record establishes the proposed endeavor 
has substantial merit, as required by the first Dhanasar prong. See id. at 889-90. 
On appeal, the Petitioner first asserts that "the [p]roposed [ e ]ndeavor does not undergo any substantial 
change, as the [RFE] response does not materially modify or alter the Petitioner's projection. The 
Petitioner will perform the same work, either as a flight instructor working as an employee, or 
providing his mentioned services with a company of his own." The Petitioner further asserts on appeal 
that Matter ofKatigbak and Matter ofIzummi are "only limited in scope to the general classification 
for visa types, such as a second or third classification as an individual," but that they are inapplicable 
to "ancillary benefits such as a [ n ]ational [i]nterest [ w ]aiver." The Petitioner further asserts on appeal 
that Matter ofKatigbak and Matter ofIzummi apply "only after the denial [ when a petitioner attempts] 
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to introduce evidence on a motion to reopen and reconsider to establish eligibility," but not "when 
adjudicating [RFE] responses." 
We first note again that, contrary to the Petitioner's assertions on appeal, the Petitioner's RFE response 
materially modified the details of the proposed endeavor after filing the petition, presenting a new set 
of facts that cannot-and do not-establish eligibility for the reasons discussed above. See 8 C.F.R. 
§ 103 .2(b)(1 ); see also Matter ofKatigbak, 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. 
Next, contrary to the Petitioner's assertions on appeal, Matter ofKatibgak and Matter ofIzwnmi, like 
8 C.F.R. § 103.2(b)(l), apply both to evidence pertaining to a particular visa classification and to 
evidence pertaining to issues the Petitioner describes as "ancillary benefits such as a [ n] ational 
[i]nterest [ w ]aiver." Matter of Katibak specifically noted that a central question is whether an 
individual qualified for the requested visa at the time the visa petition is filed, based on the set of facts 
that existed as of that date, because the priority date attaches to the petition filing date. Matter of 
Katigbak, 14 I&N Dec. at 48-49. Section 203(b)(2)(A) of the Act makes second-preference visas 
available, in relevant part, to qualified individuals "whose services in the sciences, arts, professions, 
or business are sought by an employer in the United States," thus making the job offer requirement a 
visa classification eligibility criterion that must be satisfied at the time of filing, not "ancillary" to 
classification as the Petitioner describes it. See 8 C.F.R. § 103.2(b)(l); see also Matter ofKatigbak, 
14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. 
Section 203(b )(2)(B) of the Act establishes criteria for a discretionary national interest waiver of the 
job offer requirement. Significantly, though, because the job offer requirement must be satisfied at 
the time of filing as a part of a requested visa classification, eligibility for the waiver of a requisite job 
offer must also be satisfied based on the set of facts that existed at the time of filing as part of the 
requested visa classification; otherwise, a beneficiary in question would not have been eligible for the 
requested visa classification on the filing date and, thus, as of the priority date. See id. Despite the 
Petitioner's assertions on appeal, whether evidence is submitted at the time of filing, in response to an 
RFE, or on motion after a benefit request has already been adjudicated is beside the point-the 
evidence in question must establish that the fact existed at the time of filing the benefit request in order 
for it to be within the set of facts that may establish eligibility for the benefit. See id. In this case, the 
Petitioner does not establish that, at the time of filing, the proposed endeavor entailed founding his 
own flight school; therefore, his post-filing statements to that effect present a new set of facts that 
cannot-and do not-establish eligibility for the reasons discussed above. See 8 C .F.R. § 103.2(b )( 1 ); 
see also Matter ofKatigbak, 14 I&N Dec. at 49; Matter ofIzummi, 22 I&N Dec. at 176. 
Next, the Petitioner restates generalized information in the record regarding the aviation industry, he 
reiterates his description of the proposed endeavor, and he asserts that "ample evidence was provided 
with the initial petition to demonstrate that the Petitioner's proposed endeavor was correctly stated 
and that it is of national importance." 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
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implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
First, as noted, in determining national importance, the relevant question is not the importance of the 
industry, field, or profession in which an individual will work. The generalized information in the 
record regarding the aviation industry that the Petitioner discusses on appeal does not address the 
Petitioner, the "specific endeavor that the [Petitioner] proposes to undertake" or how the proposed 
endeavor may have national importance. See id. at 889. Therefore, the generalized information 
regarding the aviation industry referenced on appeal does not establish that the proposed endeavor has 
national importance. 
Next, the Petitioner's general ambitions to work as an aircraft engineer, pilot trainer, or both, may 
benefit his current or potential employer(s), current or potential business partners of the employer(s), 
and the pilots the Petitioner may train. However, the record does not establish how the "specific 
endeavor that the [Petitioner] proposes to undertake" may have "national or even global implications 
within a particular field, such as those resulting from certain improved manufacturing processes or 
medical advances." Id. We acknowledge that the Petitioner shares his ambitions for pursuing 
theoretical engineering concepts at some point in his career; however, the record does not establish 
that the "specific endeavor that the [Petitioner] proposes to undertake," based on the set of facts that 
existed at the time of filing, may have the type of broader implications contemplated by Dhanasar. 
Id. Although the proposed endeavor may entail training pilots, the record does not establish how 
training pilots-or any other aspect of the proposed endeavor-has broader implications like 
"significant potential to employ U.S. workers or has other substantial positive economic effects, 
particularly in an economically depressed area." Id. at 889-90. Even the Petitioner's discussion in his 
RFE response of opening his own flight school-which we note again cannot and does not establish 
eligibility-does not articulate the location of the flight school, the number of employees his flight 
school would hire, the wages the Petitioner would pay those employees, and other details that could 
demonstrate how the proposed endeavor may have "significant potential to employ U.S. workers or 
has other substantial positive economic effects, particularly in an economically depressed area." Id. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong, and 
whether the proposed endeavor has substantial merit, as required by the first Dhanasar prong. See 
Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. As noted above, we 
also reserve our opinion regarding whether the record establishes the Petitioner is eligible for second­
preference classification. See id. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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