dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 7, 2023 In Re: 28087110 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a pilot, 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. § 1 l 53(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, concluding that although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, he 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 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. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar , 26 I&N Dec. 884, 889 
(AAO 2016) provides that USCIS may, as matter of discretion, 1 grant a national interest waiver if the 
petitioner shows: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
• 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. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal is whether the 
Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, 
would be in the national interest. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. 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 Petitioner initially stated that he intends to work in the United States as a pilot/airline captain. At 
the time of filing, the Petitioner was employed by I I a private aircraft charter company 
operating out ofl IFlorida, in the positions of pilot, safety director, training manager, ground 
instructor, and Federal Aviation Adminisyation (FIA) liaison. The record also indicates that he was 
simultaneously employed as a captain for Airlines inl !Utah. 
In a personal statement, the Petitioner stated as follows: 
Based on my experience, expertise, and unique abilities, I seek to remain serving this 
great nation as a Pilot. My experience flying under Federal Regulations Part 91, 121, 
and 135 will allow me to command any aircraft type in any type of operation to directly 
help relieve the U.S. from its massive shortage. Further, with my many years of 
experience, and my high caliber of instruction teaching pilots under Part 61, 135, and 
141 of the Federal Regulations, I will help relieve the exponentially growing pilot 
shortage through mentorship, instruction, and consultation for the next generation of 
pilots and air carriers. 
The Petitioner also submitted copies of his academic credentials, industry articles and reports, a job 
offer letter, and letters ofrecommendation in support of his eligibility. 
The Director issued a request for evidence (RFE), noting that the record as initially constituted was 
insufficient to demonstrate that the proposed endeavor had substantial merit or national importance. 
The Director observed that the Petitioner did not provide specific insight as to what he intends to do 
in the United States, and requested a detailed description of the proposed endeavor so that the Director 
could evaluate his request for a national interest waiver under the Dhanasar framework. 
In response, the Petitioner submitted a statement indicating that he began working as a vice president 
forl lafter the petition's filing, and indicated his intent to continue working in this role 
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in the United States. He also claimed that he would continue working as a captain forl~--~ 
Airlines. 
In an updated personal statement, the Petitioner stated that in his role as vice president forD
Ihe will continue to "provide consultation services, prepare procedural manuals, and act as 
a liaison between private companies and the FAA to ensure American Aviation companies are 
complying with FAA regulations" and will "provide technical project development services to the 
company for their LevelFlight Software." He further stated: 
Perhaps the biggest undertaking that I am embarking forl Iis opening a 
new academy. This will be a new and unique type of aviation school that will directly 
address multiple shortcomings within the Aviation Industry. When I joined the 
company, I was able to write the training outline, curriculum, and syllabus for all six 
courses in two months. I corresponded with the FAA directly, identified the exact legal 
intricacies for this never attempted project, and we are now looking to gain final 
certification by the end of this year. One primary objective of this school is addressing 
the decrease in pilot competency that is plaguing the industry. With the pilot shortage 
comes a significant drop in the quality of pilots operating today's aircraft. Some 
airlines are now hiring pilots without interviews and have even attempted to waive the 
minimum federal flight time required to possess an [ airline transport pilot] license. At 
the flight school, we aim to elevate the quality and skills of the pilots within the nation 
by placing them in a high stress environment and stripping them of their electronic and 
software protections with a back-to-basics approach. The purpose of this method is to 
ensure pilots are equipped with more than the bare minimum knowledge required to fly 
an aircraft. Instead, we hope to train and graduate expert pilots able to handle extreme 
and emergency situations for the safety of all passengers. 
The Petitioner also submitted opinion letters as well as additional recommendation letters, articles, 
and research in support of his eligibility for a waiver of the job offer. 
In denying the petition, the Director determined that the Petitioner provided insufficient descriptions 
and documentary evidence to identify his proposed endeavor with specificity, and therefore had not 
established the proposed endeavor's substantial merit and national importance. The Director noted 
that in addition to the general descriptions of his proposed duties, the Petitioner provided two different 
descriptions for his proposed endeavor. The Director noted that he initially stated his intent to work 
as a pilot/airline captain, but later indicated in the RFE reply that he would open a flight academy at a 
private aviation company and would be working for that company as its vice president, in addition to 
maintaining his position as a commercial pilot/airline captain. The Director determined that in 
addition to materially changing the original proposed endeavor, the Petitioner had not shown, to the 
extent the endeavor could be understood, that his endeavor had significant potential to employ U.S. 
workers, offer substantial positive economic effects for the United States, or that the benefits to the 
national economy resulting from the proposed endeavor would reach a level contemplated by the 
Dhanasar framework. 
On appeal, the Petitioner asserts that he has established, by a preponderance of the evidence, the 
substantial merit and national importance of his work, and that the Director's decision was in error 
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because it "applied a stricter standard" of proof. The Petitioner farther asserts that the Director erred 
by not considering the totality of the evidence provided both initially and in response to the RFE. 
With respect to the standard of proof in this matter, a petitioner must establish that he meets each 
eligibility requirement of the benefit sought by a preponderance of the evidence. Matter ofChawathe, 
25 I& N Dec. at 3 75-76. In other words, a petitioner must show that what he claims is "more likely 
than not" or "probably" true. To determine whether a petitioner has met his burden under the 
preponderance standard, USCIS considers not only the quantity, but also the quality (including 
relevance, probative value, and credibility) of the evidence. Id. at 376; Matter ofE-M-, 20 I&N Dec. 
77, 79-80 (Comm'r 1989). 
Preliminarily, we note that the Petitioner's proposed endeavor is material to whether the endeavor has 
substantial merit and is of national importance. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90. USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit sought at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A petitioner may not make material changes to a petition that has already been 
filed to make a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N Dec. 
169, 175 (Comm'r 1988); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
As noted above, the Petitioner introduced a new proposed endeavor in response to the RFE rather than 
establishing the national importance of the proposed endeavor described in the initial petition. The 
Petitioner's new plans in the RFE reply, and contended in this appeal, describe a new set of facts regarding 
the proposed endeavor. The Petitioner's proposed endeavor to provide consulting services through his 
role as a vice president of a private aviation company, and his intent to also operate a flight academy on 
the company's behalf: was presented after the filing date and cannot retroactively establish eligibility. 
Accordingly, we find that the Petitioner made an impermissible material change to his proposed 
endeavor. 2 If significant material changes are made to the initial request for approval, a petitioner must 
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
See 8 C.F.R. § 103.2(b)(l). Therefore, on appeal, we will consider if the record demonstrates that 
proposed endeavor submitted with the initial filing, pilot/airline captain, has national importance. We 
conclude it does not. 
As initially stated, the Petitioner was employed by both a commercial airline and a private aircraft 
charter company at the time of filing, and proposed to contribute to the aviation industry by continuing 
to work as a pilot/airline captain. Moreover, in his personal statement submitted in support of the 
petition, he indicated his intent to also provide mentorship, instruction, and consultation services 
within the aviation industry. The Petitioner did not provide a timeline for when he would occupy each 
of these roles and it is not apparent whether securing a position in any of these areas is the proposed 
endeavor or whether the proposed endeavor involves the Petitioner performing these roles either 
simultaneously or consecutively. Overall, we have insufficient information concerning the proposed 
endeavor with which to determine whether it has substantial merit because the Petitioner's proposed 
2 Counsel for the Petitioner argues on appeal that the changes made to the proposed endeavor in response to the RFE did 
not constitute a material change because pursuant to INA§ 204(j),"a Petitioner is able to change employment so long as it 
is within the same or similar occupation classification." Counsel's argument is misplaced, however, because this 
employment-based immigrant visa category is not tied to a specific job offer and individuals seeking a national interest 
waiver of the job offer requirement do not have to request job portability under INA section 204(j). 
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endeavor has not been clearly defined. We therefore agree with the Director's determination that the 
Petitioner did not submit persuasive evidence to support a finding of substantial merit. The Petitioner 
bears the burden to both affirmatively establish eligibility under the Dhanasar framework, of which 
substantial merit is one piece, and establish his eligibility by a preponderance of the evidence. See Matter 
ofChawathe, 25 I&N Dec. at 376. 
In determining national importance, the relevant question is not the importance of the field, 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. 
We agree with the Director that the Petitioner has not provided sufficient documentation or 
explanation concerning how his proposed endeavor has national importance. The purpose of the 
national interest waiver is not to afford the Petitioner an opportunity to engage in a job search or further 
his own career while only adding ancillary benefits to the nation. Although he has many ideas, it 
remains unclear as to what specifically his proposed endeavor involves aside from securing a job in 
the U.S. aviation industry as a pilot, a mentor, an instructor, or a consultant. Moreover, we do not 
know if he intends to perform all the functions he describes or whether he will perform in only one of 
the identified positions. In Dhanasar, we held that a petitioner must identify "the specific endeavor 
that the foreign national proposes to undertake." See id. at 889. While it may include one or more of 
the positions outlined above, we conclude that the Petitioner has not provided a specific or consistent 
proposed endeavor activity such that we can determine its national importance. 
Throughout the record, the Petitioner points to his background, education, and experience in his field, 
noting that he has extensive professional experience supported by extensive flight training and 
certificates and experience working with the FAA. The Petitioner's knowledge, skills, and experience 
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." Id. at 890. The issue here is whether the specific 
endeavor that he proposes to undertake has national importance under the second consideration of 
Dhanasar's first prong. To evaluate whether the Petitioner's proposed endeavor satisfies the national 
importance requirement, we look to evidence documenting the "potential prospective impact" of his 
work. 
We note that while the Petitioner, as a pilot/airline captain, may fly nationally or internationally for 
private or commercial U.S. airlines, simply having a national or global route does not establish that 
the endeavor has a national or global impact. To the extent that the Petitioner's proposed endeavor 
can be understood, we conclude that he has not substantiated how his specific work in the aviation 
industry will address a pilot shortage or positively impact the economy. Specifically, how one pilot 
will improve a national shortage or will trigger substantial positive economic impacts has not been 
explained. Assuming the Petitioner simultaneously or alternatively chooses to pursue his initial 
endeavor to work as a pilot/airline captain and provide mentoring, instruction, and consultation 
5 
services within the aviation industry, he has not provided sufficient information of how his work in 
the aviation field would rise to the level of national importance. While such endeavors may impact 
the individual passengers he transports, the individuals he trains, or the employers or airlines for which 
he works, the national importance of this work has not been adequately explained or substantiated. 
Similarly, 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. 
The Petitioner claims that his proposed endeavor has national importance because the United States 
faces a significant national and potentially global pilot shortage. In addition, the Petitioner asserts that 
pilots and the field of aviation are extremely important to the economy and that his proposed endeavor 
will offer substantial positive economic impacts. In support of both his arguments concerning pilot 
shortages and positive economic impacts, he offered numerous articles about the flight industry, its 
economic implications, and the challenges faced by airlines and pilots. While these articles provide 
useful background information, they are of limited value in this matter, as the Petitioner's specific 
proposed endeavor remains unclear. 3 Furthermore, 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. 
Here, the Petitioner has not established how his individual employment would affect national aviation 
employment levels or the U.S. economy more broadly consistent with national importance. It is 
important to note that the shortage of pilots, as well as aviation instructors, does not render his 
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 farther contends that the Director did not duly consider certain pieces of evidence and 
failed to apply the correct standard of proof when reviewing the evidence. In support, he relies primarily 
upon the evidence and arguments previously submitted. While we acknowledge the Petitioner's appellate 
claims, we nevertheless conclude that the documentation in the record does not sufficiently establish the 
national importance of the proposed endeavor as required by the first prong of the Dhanasar analytical 
framework. 4 For example, while the Petitioner submitted numerous letters of recommendation from 
others in the field of aviation, none of the authors discussed the Petitioner's endeavor as initially stated. 
Instead, the authors primarily focused on the Petitioner's past work experience and accomplishments. 
Although the record contains statements regarding the Petitioner's lengthy career in the aviation 
industry, and although the letter writers praise the Petitioner's qualifications and commend his work, 
we have insufficient information concerning the Petitioner's proposed endeavor with which to make 
a determination concerning its substantial merit and national importance. Here, the Petitioner has not 
identified how much time he will spend working as a pilot/airline captain as opposed to providing 
mentoring, instruction, or consulting services in the aviation field. Again, in determining national 
importance, the relevant question is not the importance of the industry or profession in which the 
3 We further note that the Petitioner's counsel refers to these reports and articles throughout the record, asserting that the 
status of the U.S. aviation industry impacts many different industries. On appeal, counsel emphasizes the Petitioner's 
experience in the field and generally asserts that his proposed endeavor to work as a pilot and vice president for a private 
aviation company will alleviate the pilot shortage and help the national economy by allowing the uninterrupted movement 
of people, business, and cargo. However, assertions of counsel do not constitute evidence. Matter of Ohaigbena, 19 T&N 
Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence, which may include affidavits and declarations. 
4 While we do not discuss each piece of evidence individually, we have reviewed and considered each one. 
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individual will work; instead we focus on the "the specific endeavor that the foreign national proposes 
to undertake." Id. 
The Petitioner also submitted adviso opinions from a professor in the department of mathematics 
and computer science at University and an associate teaching professor in aerospace 
engmeenng a University. Both writers focus primarily on the Petitioner's role as vice 
president for.__ ____ __, where he proposes to provide consulting services, act as FAA liaison, 
and establishing a flight academy to train pilots. As discussed above, this proposed endeavor, 
introduced for the first time in response to the RFE, constitutes a material change to the Petitioner's 
initial proposed endeavor and we will not consider it in our appellate review, as a Petitioner may not 
make material changes to a petition that has already been filed to make a deficient petition conform to 
USCIS requirements. See Matter ofIzummi, 22 I&N Dec. at 175; see also Matter ofKatigbak, 14 I&N 
Dec. at 49. Therefore, the writers' comments regarding the Petitioner's employment with I I 
bear little evidentiary weight. 
The writers also discuss the Petitioner's qualifications, as well as statistics on the U.S. pilot shortage, 
aviation safety, and the aviation industry in general. The advisory opinions do not contain a discussion 
of the initial proposed endeavor or its national importance but rather focus on the Petitioner's new 
endeavor and the importance of the aviation field. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. Matter ofCaron Int'!, 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 
opinions are of little probative value as they do not meaningfully address the details of the proposed 
endeavor as initially described and why it would have national importance. 
Because the Petitioner has not shown that he intends to pursue his initial endeavor and because he has 
not provided sufficient information and documentation regarding his proposed endeavor, he did not 
demonstrate that the endeavor has substantial merit and national importance. Therefore, we cannot 
conclude that he meets the first prong of the Dhanasar framework. Since the identified basis for denial 
is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's 
appellate arguments regarding his eligibility under the second and third 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 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. 
ORDER: The appeal is dismissed. 
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