dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 15, 2024 In Re: 31657902 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a commercial 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. § 1l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's qualification as an individual of exceptional ability and did not establish 
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 pursuant to 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an 
advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. 
Section 203(b )(2)(A) 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 
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 individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-ch apter-5. 
the requisite degree of expertise and will substantially benefit the national economy, cultural or 
educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then 
demonstrate 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 I&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. 
Id. 
II. ANALYSIS 
The Petitioner, a commercial pilot, seeks an 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. The Director denied the underlying petition, 
concluding that the Petitioner had not established his qualification for the underlying EB-2 
classification as an individual of exceptional ability. The Director further determined that, while the 
Petitioner had established the substantial merit of his proposed endeavor, he had not established its 
national importance and that it would be beneficial to the United States to waive the requirement of a 
job offer, and thus a labor certification. 4 
As an initial matter, the Petitioner asserts that the Director "did not apply the proper standard of 
proof in this case, instead imposing a stricter standard, and erroneously applied the law, to the 
detriment of the [Petitioner]." Except where a different standard is specified by law, the 
"preponderance of the evidence" is the standard of proof governing immigration benefit requests. 
See Matter of Chawathe, 25 I&N Dec. at 375; see also Matter ofMartinez, 21 I&N Dec. 1035, 1036 
(BIA 1997); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965). Accordingly, the 
"preponderance of the evidence" is the standard of proof governing national interest waiver 
petitions. See 1 USCIS Policy Manual, supra at E.4(B). While the Petitioner asserts that he has 
provided evidence sufficient to demonstrate his eligibility for the EB-2 classification and a national 
interest waiver, he does not further explain or identify any specific instance in which the Director 
applied a standard of proof other than the preponderance of evidence in denying the petition. 
3 See 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 is 
discretionary in nature). 
4 The Director determined that the Petitioner had established that he is well positioned to advance the proposed endeavor. 
2 
On appeal, the Petitioner does not contest the Director's determination that he had not established 
eligibility for the underlying EB-2 classification as an individual of exceptional ability. 5 Even had 
the Petitioner established his eligibility for the classification sought, we find, upon de novo review of 
the record in its entirety, that he has not demonstrated by a preponderance of the evidence that the 
proposed endeavor has both substantial merit and national importance under the first prong of 
Dhanasar. While we do not discuss each piece of evidence individually, we have reviewed and 
considered the record in its entirety. 
The first prong of the Dhanasar analytical framework, 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. See Dhanasar, 26 I&N Dec. at 889. In 
Dhanasar, we further noted that "we look for broader implications" of the proposed endeavor and 
that "[ a ]n undertaking may have national importance for example, because it has national or even 
global implications within a particular field." Id. We determined in Dhanasar 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. We also stated that "[a]n endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in 
an economically depressed area, for instance, may well be understood to have national importance." 
Id. at 890. 
The Petitioner's proposed endeavor, as described in his professional plan and statement, is "to 
continue using [his] expertise and knowledge in the field of aviation by working as a Pilot for 
airlines, Charter Operators, Private Companies or Entities in the U.S." In this plan, the Petitioner 
explains that he also "can work as a flight instructor for the aviation sector and serve as a seasoned 
pilot in flight training centers and schools." In an updated professional plan and statement, 
submitted with his response to the Director's request for evidence (RFE), the Petitioner restated his 
intent to "secure a position as a Pilot in Command or Second in Command in airlines," but clarified 
that in the alternative he would be "open to serving as a ground, flight, or crew instructor for 
reputable organizations," and that in furtherance of his career he "aspire[d] to expand [his] scope of 
influence and impact by becoming [a Federal Aviation Administration] Check Airman or Inspector." 
The Petitioner explained that in these roles he could "bring [his] expertise to the forefront, ensuring 
safe and efficient flight operations," "alleviate the strain on the aviation industry," and "play a 
pivotal role in training and certifying future aviators." 
The Petitioner argues on appeal that the Director's denial did not adequately consider his resume, 
professional plan, letters of recommendation, evidence of his work in the field, and industry articles 
in the record. The Petitioner's resume and an expert opinion letter from a lecturer in thel 
________________ provide detail about the Petitioner's work experience, 
skills, and qualifications as a pilot. Other evidence in the record, including the Petitioner's 
5 As the Petitioner did not address this issue on appeal, we deem the issue waived. See Matter of O-R-E-, 28 I&N Dec. 
330, 336 n.5 (BIA 2021) ( citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). 
3 
I 
completion certificates in coursework related to flight operations, aircraft certification, and aviation 
in general also establish the Petitioner 's knowledge of and skills in his field. The Petitioner ' s skills, 
knowledge, and prior work in his field, however, relate to the second prong of the Dhanasar 
framework, which "shifts the focus from the proposed endeavor to the foreign national." See 
Dhanasar , 26 I&N Dec. at 890. The issue here is whether the specific endeavor that he proposes to 
undertake has national importance under Dhanasar's first prong. 
The Petitioner provided numerous industry reports discussing commercial pilots, flight schools, and 
domestic and international airlines in the United States. He also submitted articles addressing the 
use of aviation and aerospace concepts to interest and educate students in science, technology, 
engineering, and mathematics. These articles generally indicate the importance of commercial pilots 
and the field of aviation in the United States. However, 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. 
On appeal, the Petitioner references a growing shortage of pilots in the United States and contends 
that he will be addressing this shortage, "which cannot be addressed by the U.S. workers as demand 
exceeds supply." The Petitioner provided numerous articles discussing the shortage of airline pilots in 
the United States. In the expert opinion letter, the lecturer at stated 
generally that the Petitioner's "work is in demand," that "highly experienced executive pilots are 
especially in demand," and that statistics from the Bureau of Labor Statistics indicate the projected 
growth in the employment of commercial pilots from 2019 through 2029. We are not persuaded by 
the Petitioner's argument that his proposed endeavor is of national importance because of increased 
demand and a potential to address labor shortages in the field. The Petitioner has not established that 
his proposed endeavor stands to significantly reduce the claimed national shortage. Moreover, 
shortages of qualified workers are directly addressed by the U.S. Department of Labor through the 
labor certification process. 
Finally, the Petitioner contends that the national importance of the proposed endeavor is shown as it 
"would have a significant impact on various industries in the United States, including trade, tourism, 
and the economy as a whole." In support of this contention, he provides a general discussion of the 
air transportation industry and the number of jobs it creates directly and indirectly through tourism 
and as a "driver of global trade and e-commerce." The Petitioner further asserts that the national 
importance of his work "surpasses merely working, and generating revenue, for commercial 
airlines," explaining that bis experience will "allow him to serve as an instructor to current 
professionals , and new pilots entering the field." However, the Petitioner does not offer evidence to 
show how his proposed endeavor would impact the air transportation industry or otherwise would 
operate on such a scale as to rise to a 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. Here, we conclude the Petitioner has not 
shown that his proposed endeavor stands to sufficiently extend beyond his potential employers and 
clientele to impact his field or the U.S. economy more broadly at a level commensurate with national 
importance. 
4 
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. Because the identified reasons for dismissal 
are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve remaining 
arguments concerning his eligibility under the second and third prongs of the Dhanasar framework. 
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "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 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 
As the Petitioner has not met the requisite first prong of 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. The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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