dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 9, 2024 In Re: 29504861 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an aviation 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 EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established that the Petitioner qualified for classification as an individual of exceptional ability 
and that a discretionary 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. 
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 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. Because 
this classification requires that the individual's services be sought by a United States employer, a 
separate showing is required to establish that a waiver of the job offer requirement is in the national 
interest. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). A United States bachelor's degree 
or a foreign equivalent degree followed by five years of progressive experience in the specialty is the 
equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
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: 
(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 of letter(s) from current or former employer(s) 
showing that the [ noncitizen] has at least ten years of full-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 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. 
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." 
Meeting at least three criteria, however, does not, in and of itself: establish eligibility for this 
classification. 1 If a petitioner does so, we will then consider the totality of the material provided in a 
final merits determination and assess whether the record shows that the petitioner is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 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). 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. at 376. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they 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," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
1 USCIS has confirmed the applicability of this two-part adjudicative approach in the context of aliens of exceptional 
ability. 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
2 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion, 2 grant a national interest waiver of the job offer, and 
thus the labor certification, to a petitioner classified in the EB-2 category if the petitioner demonstrates 
that (1) the noncitizen' s proposed endeavor has both substantial merit and national importance; (2) 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. 
II. ANALYSIS 
The Petitioner proposes to work in the United States as an airline pilot. The Director of the Nebraska 
Service Center denied the petition, concluding that the Petitioner did not establish that he qualified as 
an individual of exceptional ability. The Director determined that although the Petitioner met at least 
three out of six criteria, the record lacked evidence that the Petitioner's degree of expertise 1s 
significantly above that which is ordinarily encountered in the sciences, arts, or business. 
A. Individual of Exceptional Ability 
The Director considered the totality of the evidence presented in a final merits determination and found 
that the Petitioner, had not demonstrated by a preponderance of the evidence that he possesses a degree 
of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 
On appeal, the Petitioner argues that the Director misapplied the law and applied a stricter standard of 
proof than required. The Petitioner states that he submitted evidence that met all six evidentiary 
criteria under 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner farther contends that because the Director did 
not reference the final merits analysis in the request for evidence (RFE), he was not provided an 
opportunity to address the shortcomings the Director identified. Though the Petitioner is correct, we 
find the error to have been a harmless one because, as will be discussed, the Petitioner has not 
sufficiently demonstrated his proposed endeavor's national importance under the Dhanasar analytical 
framework's first prong by a preponderance of the evidence. 
Further investigation and analysis of the Petitioner's categorical eligibility for EB-2 classification by 
remanding this matter so that the Director can issue an RFE exploring a final merits determination 
would therefore serve no legal purpose. 3 The resolution of the issues pertaining to the Petitioner's 
eligibility for a waiver of the job offer requirement, and thus of a labor certification, under the 
Dhanasar analytical framework are dispositive of this appeal. For that reason, we will reserve 
consideration of the Petitioner's eligibility for the requested EB-2 category. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) (stating that agencies need not make "purely advisory findings" on issues 
unnecessary to their ultimate decisions); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) ( declining to reach alternate issues on appeal in removal proceedings where an applicant did not 
otherwise qualify for relief). 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 In addition, the Petitioner has supplemented the record via the appellate process. 
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B. Substantial Merit and National Importance 
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. 
The record shows that the Petitioner's proposed endeavor is "piloting, flight instructing and flight 
training through Crew Resource Management and Human Factor instruction for regional and charter 
airlines." The Director determined that the Petitioner had not established that the proposed endeavor 
is of national importance. 
On appeal, the Petitioner contends that the Director neglected crucial documents demonstrating 
various benefits to the United States that would result directly from the Petitioner's endeavor. The 
Petitioner argues that the record's support letters, industry expert opinion letter, business plan, and 
industry reports reveal the endeavor's substantial merit and national importance. For example, the 
Petitioner asserts that the record demonstrates that his proposed endeavor has significant potential to 
employ U.S. workers, generate substantial economic effects, and address a matter that a government 
entity has deemed important or is the subject of national initiatives. 
The expert opinion letter's author emphasizes the Petitioner's extensive experience in leadership, 
safety and operations of flights, and flights instructions and training. The author farther highlights the 
demand for and significance of the Petitioner's work in the aviation field and states that the Petitioner 
possesses proven expertise in aeronautics, safety management, and flights instructions and training. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of the Petitioner's work. While 
the Petitioner's business plan reflects his intention to join a commercial airline and aim to address gaps 
in the aviation industry by providing training and mentorship to new pilots, the Petitioner has not 
offered sufficient information and evidence to demonstrate that the prospective impact of his proposed 
endeavor rises to the level of national importance. In Dhanasar, we determined that the petitioner's 
teaching activities did not rise to the level of having national importance because they would not 
impact his field more broadly. Id. at 893. 
Though we acknowledge the Petitioner's assertions and the evidence he submitted on appeal, we 
conclude that the Petitioner has not shown his proposed endeavor stands to sufficiently extend beyond 
his customers and employers to enhance societal welfare on a broader scale indicative of national 
importance. 
The first prong focuses on the proposed endeavor itself, not the petitioner. Id. The Petitioner must 
establish that his specific endeavor has national importance under Dhanasar 's first prong. The 
Petitioner has not shown that the specific endeavor he proposes to undertake has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for the United States. 
While the Petitioner claims that his endeavor will yield extensive benefits for the U.S. economy and 
will enhance the overall safety of the country's airline support through the provision of safe 
transportation to passengers, he has not presented evidence indicating that the benefits to the regional or 
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national economy resulting from his undertaking would reach the level of"substantial positive economic 
effects" contemplated by Dhanasar. Id. at 890. 
On appeal, the Petitioner relies on the aviation industry's importance and the shortage of pilots in the 
United States as evidence of his endeavor's importance. We acknowledge that the Petitioner is a 
qualified pilot; however, that fact alone is insufficient to establish the national importance of the 
endeavor proposed here. As previously mentioned, in determining national importance, the relevant 
question is not the importance of the industry or profession in which the individual will work. Instead, 
we focus on the "the specific endeavor that the foreign national proposes to undertake." Id. at 889. 
Although the Petitioner states his commitment to easing the challenges arising from the shortage of 
pilots, he has not sufficiently explained how he will positively impact the U.S. economy and create 
direct and indirect jobs to move the U.S. economy on a broad scale rising to the level of national 
importance. It is also important to note that the shortage of pilots, as well as aviation instructors, does 
not render the Petitioner's proposed endeavor nationally important under the Dhanasar framework. 
In fact, such shortages of qualified workers are directly addressed by the U.S. Department of Labor 
through the labor certification process. 
The Petitioner maintains that he is an experienced pilot with over 13 years in the field and has worked 
for several significant companies. He highlights the letters of recommendation submitted from his 
colleagues and independent experts offering assessments of his career's trajectory and the recognition 
he has garnered. Though we acknowledge the Petitioner's experience and skill set, and his desire to 
"contribute to the formation of pilots in the U.S. by working as a flight instructor and trainer," the 
Petitioner must demonstrate his proposed endeavor offers benefits which extend beyond his 
community to impact the aviation industry more broadly. Moreover, the Petitioner must demonstrate 
the national importance of his specific proposed endeavor of working as a commercial airline pilot 
rather than the importance of the national initiatives and interests, industries, or fields. He has not 
done so. 
It is insufficient to claim an endeavor has national importance or will create a broad impact without 
providing evidence to corroborate such claims. The Petitioner must support his assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). 
For the aforementioned reasons, the Petitioner's proposed work does not meet the first prong of the 
Dhanasar framework. Because the documentation in the record does not establish the national 
importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, 
the Petitioner has not demonstrated eligibility for a national interest waiver. Since this issue is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding 
his eligibility under the second and third prongs outlined in Dhanasar. 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). 
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III. CONCLUSION 
As the Petitioner has not met the Dhanasar analytical framework's requisite first prong, we conclude 
that he has not established that he is eligible for or otherwise merits a national interest waiver as a 
matter of discretion. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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