dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 31, 2024 In Re: 31260787 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a flight instructor, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or as an individual of 
exceptional ability. 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 Nebraska Service Center denied the petition, concluding the Petitioner did not 
demonstrate that: 1) he qualified for the EB-2 classification as either a member of the professions 
holding an advanced degree or as an individual of exceptional ability; or 2) he merited a national 
interest waiver, as a matter of discretion, under the three-prong framework outlined in Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 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)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or 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. 8 C.F.R. § 204.5(k)(3)(ii)(A)­
(F). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 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. 
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." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 
26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
petitions. Dhanasar states that USCTS may, as matter of discretion, 1 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
A. EB-2 Classification 
In order to qualify for a national interest waiver, the Petitioner must first show that he qualifies for the 
EB-2 classification under section 203(b )(2)(A) of the Act, either as an advanced degree professional 
or an individual of exceptional ability. In denying the petition, the Director concluded that the 
Petitioner did not qualify for the EB-2 classification as an advanced degree professional 2 or as an 
individual of exceptional ability. 
The Director concluded that the Petitioner met only two of the minimum three required criteria 
necessary to warrant a final merits determination as to whether he established eligibility as an 
individual of exceptional ability. However, in apparent contradiction, the Director later recognized 
that the Petitioner had satisfied three criteria3 and provided an unfavorable final merits determination. 
As part of his analysis, the Director stated that the Petitioner "did not submit sufficient documentary 
evidence to establish that his experience and/or accomplishments surpass that of others in the field." 
On appeal, the Petitioner maintains that the evidence of record demonstrates his extensive experience 
as a pilot and eligibility as an individual of exceptional ability. 
1 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 to be 
discretionary in nature). 
2 On appeal, the Petitioner does not dispute the Director's conclusion regarding his qualifications as an advanced degree 
professional. 
3 We note that, while the Director indicated in the request for evidence that the Petitioner met the "minimum regulatmy 
requirement" for a fourth criterion, in his denial, the Director determined that the Petitioner did not meet that criterion. 
2 
As discussed below, the Petitioner has not presented sufficient evidence to establish his eligibility for 
a national interest waiver, as a matter of discretion. Since the identified basis for denial is dispositive 
of the Petitioner's appeal, we decline to reach and hereby reserve the issue of his eligibility for the 
EB-2 classification. 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 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). 
B. National Interest Waiver 
The Petitioner described his proposed endeavor in response to a request for evidence as follows: 
I hold the unique distinction of being the sole individual in North America to possess 
Flight Instructor Ratings from four different countries. It's important to note that these 
Flight Instructor Ratings are not convertible; each one must be acquired independently 
by successfully completing the respective country's ground exams and flight tests. 
I'd like to gently clarify that my career aspirations do not include seeking a role as an 
airline pilot. Instead, I find my strongest suitability and inclination towards the roles 
of a Flight Instructor and the domain of Commercial Piloting, where my qualifications 
and interests align most harmoniously. 
I would like to reiterate my strong preference for the autonomy to independently select 
a reputable institution. I have firm confidence that my extensive qualifications and vast 
experience would unquestionably bring significant value to any flight training institute. 
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. 
Dhanasar, 26 I&N Dec. at 889. 
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." 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 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. Further, to 
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evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we 
look to evidence documenting the "potential prospective impact" of his work. 
Upon review, we observe that the Director's decision misinterpreted the Petitioner's proposed 
endeavor as an intention to work in the United States as an airline pilot. The record reflects that the 
Petitioner's intention was to work in the United States as a flight instructor. On appeal, the Petitioner 
points to his experience, including his credentials from several countries, asserting the following 
( quoted as written): 
Beyond any doubt, this substantial merit will be of national importance as while being 
with any flight school, the customers of that United States flight school will be able to 
get more prospective flight students globally as students with attraction of four 
countries flight ratings. 
Documentation submitted in the record also emphasized the Petitioner's experience and how it will 
serve to attract a diverse array of flight school students and address a national pilot shortage. First, 
the Petitioner's experience is generally relevant not to the first prong of the Dhanasar adjudicative 
framework, but to the second, which assesses whether an individual is well-positioned to advance a 
proposed endeavor. In addition, the Petitioner has not explained how his intention to fill a single 
position at a flight school to instruct students in a field of high demand would alleviate an asserted 
national shortage of pilots. The Petitioner's vague assertion that his proposed work would have a 
potential positive impact on the number of pilots in the United States does not serve as probative 
evidence to demonstrate its national impact on the field of aviation. The Petitioner did not explain in 
detail or sufficiently document how his work as a flight instructor would have a potential prospective 
national impact on the aviation industry or economy. The burden is on the Petitioner to provide 
evidence to support his assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. In addition, the importance of a nationwide issue does not confer 
national importance on the Petitioner's proposed endeavor to work as a flight instructor. Again, in 
determining national importance within the Dhanasar framework, the relevant question is not the 
importance of the field, industry, or profession in which the individual will work, but the specific 
endeavor that the individual will undertake. Id. at 889. 
The Petitioner has not demonstrated that his proposed endeavor would serve to impact the industry or 
field more broadly, rising to the level of national importance. Further, it is not clear how the 
Petitioner's employment as a flight instructor for a training academy in the United States would have 
a positive economic impact at the level of "substantial economic effects" contemplated by Dhanasar. 
Id. at 890. While the Petitioner links his proposed endeavor's national importance to an asserted 
shortage of pilots, we observe that shortages in a field are not alone sufficient to demonstrate that his 
endeavor stands to have an impact on the broader field or otherwise have implications rising to the 
level of national importance. Although the Petitioner intended to train future pilots, the record does 
not sufficiently demonstrate that his individual training efforts would have the national impact 
contemplated by Dhanasar. 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. 
4 
The record does not establish the national importance of the proposed endeavor as required by the first 
prong of the Dhanasar precedent decision. Therefore, 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 eligibility 
under the Dhanasar 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 Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
conclude that the Petitioner has not established that he is eligible for or otherwise merits a national 
interest waiver. The petition will remain denied. 4 
ORDER: The appeal is dismissed. 
4 We note that the Petitioner initially submitted documentation regarding his military service and sources describing 
naturalization opportunities for certain military service members active during hostilities, as per section 329(a) of the Act. 
The Petitioner also submitted an excerpt from the Federal Register reflecting an executive order discussing eligibility for 
naturalization based on military service during the Persian Gulf Conflict. However, the Petitioner's military service is not 
relevant here to demonstrating his eligibility for either EB-2 classification or a national interest waiver. The Petitioner's 
assertions regarding his military service and potential naturalization on this basis are relevant to a Form N-400, Application 
for Naturalization, which we do not have jurisdiction over in this appeal of a denied Form T-140, Immigrant Petition for 
Alien Workers (National Interest Waiver). 
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