dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
In Re: 25573069 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 24, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a pilot, seeks second preference immigrant classification as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts or business. He also seeks 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. § 1153(b )(2). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national 's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Acting Director of the Texas Service Center denied the petition, concluding that: 1) the Petitioner 
had not established eligibility for the underlying EB-2 immigrant visa classification as a member of 
the professions holding an advanced degree or an individual with exceptional ability; and 2) the 
Petitioner did not establish that a waiver of the classification's job offer requirement would be in the 
national interest. The Petitioner subsequently filed an appeal, which we dismissed, concluding that 
the Petitioner had not overcome the Acting Director's adverse conclusion regarding his eligibility for 
the underlying EB-2 immigrant visa classification. 1 The matter is now before us on a motion to 
reopen.2 
1 We detennined that because the Petitioner did not establish eligibility for EB-2 visa classification, we reserved , without 
making a conclusion on, the issue of whether the Petitioner meets the remainder of the first prong on national importance, 
or the second and third prongs under the Dhanasar framework. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (finding 
it unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal); 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) . We note, however , that although we did not include a discussion of the Dhanasa r framework in our 
decision on appeal, even if the Petitione r could establish EB2 eligibility, which he has not, the record does not show that 
the Petitioner would overcome the Acting Director ' s decision on national importance so as to merit approval of his request 
for a national interest waiver. 
2 We decline the Petitioner ' s request for oral argument. 8 C.F.R . § 103.3(b) . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion 
to reopen. 
I. REQUIREMENTS OF A MOTION TO REOPEN 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
In addition, the new facts in a motion to reopen must possess such significance that "the new evidence 
offered would likely change the result in the case." See Matter of Coelho, 20 I&N Dec. 464,473 (BIA 
1992). In other words, a motion to reopen should only be granted under limited circumstances where 
the petitioner demonstrates that the new evidence would result in a different outcome. See id. 
II. ANALYSIS 
The issue to be determined is whether the Petitioner has offered evidence that warrants reopening of 
our prior decision, where we concluded that the Petitioner did not demonstrate eligibility for the EB-
2 immigrant classification because he did not establish that he is an individual with exceptional ability. 
Although we explained why the Petitioner also does not qualify for the EB-2 classification as a 
member of the professions holding an advanced degree, we ultimately concluded that the Petitioner 
waived that issue on appeal because he did not address it, either through arguments in his appeal brief 
or through the submission of evidence on appeal. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 
(BIA 2012), (stating that when a filing party fails to appeal an issue addressed in an adverse decision, 
that issue is waived). Accordingly, because the Petitioner effectively waived the issue of whether he 
qualifies as an advanced degree professional, any evidence submitted on motion with regards to the 
waived issue will not be considered as a basis for reopening of our prior decision. 
Next, we addressed the Petitioner's claim that he is an individual with exceptional ability. 
To determine eligibility under section 203(b )(2)(A) of the Act, "exceptional ability" is defined as "a 
degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." 
8 C.F.R. § 204.5(k)(2). The regulations at 8 C.F.R. § 204.5(k)(3)(ii) further provide six criteria, at 
least three of which must be satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the alien 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 alien has at least ten years of foll-time experience in the occupation for 
which he or she is being sought; 
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(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration [sic] 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. 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. Where a petitioner meets these initial evidence requirements, we then 
consider the totality of the material provided in a final merits determination and assess whether the 
record shows the petitioner possesses exceptional ability. See Kazarian v. USCIS, 596 F.3d 1115 (9th 
Cir. 2010) (discussing a two-part review where the documentation is first counted and then, iffolfilling 
the required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 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 of Chawathe, 25 I&N Dec. at 376. 
In the present matter, of the six criteria listed above, we agreed with the Acting Director's 
determination that the Petitioner met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), and (E). We 
noted, however, that the Petitioner did not address the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) on 
appeal. Therefore, although the current motion to reopen contains evidence pertaining to the 
Petitioner's prior experience in the occupation for which he seeks a national interest waiver, the 
Petitioner did not previously address this criterion on appeal and thereby waived any future claim 
pertaining to that criterion on motion. See Matter of R-A-M-, 25 I&N Dec. at 658 n.2. 
Likewise, we noted that on appeal the Petitioner did not offer additional evidence or put forth an 
argument regarding the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D); we further pointed out that in 
response to a previously issued notice of intent to deny (NOID) the Petitioner stated that he was "not 
submitting evidence to prove this criterion." As such, we will not consider on motion any evidence 
that the Petitioner now offers regarding a criterion he previously waived. See Matter of R-A-M-, 25 
I&N Dec. at 658 n.2. 
Regarding the last criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), although we acknowledged that the 
Petitioner has extensive experience as a pilot, we determined that the Petitioner did not explain the 
nature of his specific contributions to the field of aviation and he offered no supporting evidence on 
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this point. As such, we concluded that the Petitioner did not demonstrate that he received "recognition 
for achievements and significant contributions to the industry or field." In addressing this criterion on 
motion, the Petitioner resubmits copies of the following: 1) translation of Federal Law 12, 725 from 
October 2012; 2) translation of an "Acknowledgement" of the Petitioner's "active participation in the 
Commission for the Control of Aviation Hazard in Brazil"; 3) a partially translated environmental 
license; 3 4) a translated "Diploma" establishing the Petitioner's "valuable services to 
I I and 5) a 1998 letter from I J who identified himself as __ of the National 
Transportation Safety Board (NTSB) at the time the letter was written. Because these documents were 
part of the record at the time of the appeal and had been previously considered, they do not constitute 
evidence of new facts to be considered in support of a motion to reopen. See 8 C.F.R. § 103.5(a)(2). 
Other supporting evidence on motion includes another letter froml I in his capacity as former 
I of the NTSB and a letter from the former I lat the Brazilian Aeronautical Accidents 
Investigation and Prevention. We note, however, that the Petitioner previously provided letters from 
the same two signatories in response to the NOID. Although the letters submitted on motion are not 
the same letters that were previously submitted, their content is remarkably similar to that in the 
originally submitted letters from the same two signatories, and on motion the Petitioner does not point 
to any difference in content. Because the newly submitted letters do not offer new facts and because 
the content in the letters had been duly considered as part of our appellate review, the letters do not 
establish cause for reopening our prior decision. 
Lastly, the Petitioner seeks to address our final merits determination where we highlighted our finding 
that the Petitioner did not explain the nature of his specific contributions to the field of aviation or 
provide evidence with regard thereto. We further pointed out that the Acting Director's denial 
included the final merits determination in which she provided a comprehensive analysis of the 
evidence in the record. We noted, however, that the Petitioner neither discussed that analysis nor 
provided evidence on appeal, but rather merely reiterated his professional accomplishments during his 
40 years of experience in the aviation field. We concluded that despite the Petitioner's extensive 
experience as a pilot, he did not explain how satisfying his academic and licensing requirements 
demonstrate exceptional ability. Likewise, the Petitioner similarly fails to adequately address the final 
merits determination on motion, focusing instead on our summary of the Acting Director's decision 
where she commented on the lack of relevance and significance of the evidence pertaining to the 
Petitioner's membership in a professional association. However, the Petitioner does not offer new 
facts or evidence to specifically address deficiencies identified; instead, he resubmits previously 
submitted declarations and other documents pertaining to his professional credentials and experience. 
III. CONCLUSION 
In sum, the Petitioner has not offered facts supported by evidence to show proper cause for reopening 
our prior decision. Therefore, the Petitioner has not met the requirements of a motion to reopen. 
3 This document appears to be a license comprised of various fields containing information associated with the filer, such 
as names and license duration period. However, only portions of the document have been translated into English. We 
note that a partial translation is not in compliance with regulatory criteria, which require that a full English language 
translation accompany any foreign document submitted as evidence. See 8 C.F.R. § 103.2(b)(3). 
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ORDER: The motion is dismissed. 
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