dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 28, 2024 In Re: 30354390 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a pilot, seeks employment-based second preference (EB-2) immigrant classification as 
a member of the professions holding an advanced degree and an individual of exceptional ability. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(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 the record did not 
establish that the Petitioner qualifies for the EB-2 classification as an individual of exceptional ability, 
or that he merits a national interest waiver as a matter of discretion. 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/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. 
"Profession" is defined as of the occupations listed in section 101(a)(32) of the Act, as well as any 
occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation. 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." Section 
203(b )(2)(B)(i) of the Act. 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 USCIS 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. 
TI. ANALYSIS 
As noted above, to demonstrate eligibility as an individual of exceptional ability, a petitioner must 
initially submit documentation that satisfies at least three of six categories of evidence at 8 C.F .R. 
§ 204.5(k)(3)(ii)(A)-(F). 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The record shows that the Petitioner has a certificate for completion of aviation programs at training 
schools in Colombia and several additional training certificates, including those for courses in aircraft 
emergency response and proficiency in English. The record also includes the Petitioner's Airline 
Transport Pilot certification from the U.S. Department of Transportation and the Federal Aviation 
Administration. The record satisfies this criterion. 
Evidence in the form ofletter(s) from current or former employer(s) showing that 
the individual has at least ten years offull-time experience in the occupation for 
which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
On appeal, the Petitioner states he does not contest the Director's conclusion regarding his 
qualifications under 8 C.F.R. § 204.5(h)(3)(ii). An issue not raised on appeal is waived. See, e.g., 
Matter of O-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, I&N Dec. 657, 
658 n.2 (BIA 2012)). 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Goining 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 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The record includes documentation of several licenses demonstrating the Petitioner's authorization to 
pilot commercial aircraft. The record satisfies this criterion. 
Evidence that the individual has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The record includes several pay statements for the Petitioner and a letter confirming a monetary award 
for a change in his role with his employer. The record does not include documentation to show how 
the Petitioner's salary or remuneration compared to other airline pilots during that period of 
employment, nor does the record otherwise include evidence sufficient to demonstrate that his salary 
or remuneration were based on his exceptional ability as a pilot. We note that, while the Petitioner 
states on appeal that he is "submitting evidence to fulfill this criterion," the brief is not supplemented 
by additional evidence. The record does not satisfy this criterion. 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
On appeal, the Petitioner maintains that he is eligible under this criterion due to his membership with 
the Aircraft Owners and Pilots Association (AOP A). The record includes a letter from AOP A 
confirming his membership and describing the benefits associated with it, including legal and medical 
services, flight training and aircraft financing, and online training courses. The record also includes a 
webpage from the organization summarizing what it means to be an AOP A pilot. In addition, the 
record includes a page from the U.S. Senate Congressional Record dated May 13, 2019, which depicts 
a resolution acknowledging the 80th anniversary of AOP A and explaining its origins. The Petitioner 
has highlighted a portion of the resolution as follows: 
Whereas AOPA was formed on May 15, 1939, in Philadelphia, Pennsylvania, 
in the years leading up to the entry of the United States into World War II; 
Whereas AOP A has grown into the largest aviation association in the world; 
Whereas AOP A has an ongoing legacy of successfully representing the interests 
of general aviation pilots and private aircraft owners across the United States; 
Whereas general aviation plays an important role in the economic vitality of 
communities across the United States, creating jobs and opportunities for growth 
throughout the United States .... 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as any occupation for which a United 
States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation. Accordingly, a professional association is one which requires its members to be members 
of a profession as defined in the regulation. Neither the letter from AOPA, the AOPA webpage, nor 
the section cited in the Congressional Record contains information concerning the association's 
membership requirements, including whether or not the association requires the minimum of a 
bachelor's degree or its foreign equivalent for admission. Senate Resolution 203 references AOP A's 
advocacy for aviation safety and commitment "to growing the pilot population by introducing young 
3 
people to career opportunities and welcoming more women and minorities into aviation"; however, 
information about the significance of the association within the industry, the organization's mission, 
and its membership numbers does not speak to specific qualifications for membership, including any 
minimum education requirements. The record does not sufficiently demonstrate that AOP A qualifies 
as a professional association for EB-2 eligibility purposes. The record does not satisfy this criterion. 
Evidence ofrecognition for achievements and significant contributions to the indust,y 
or.field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner maintains, on appeal, that the record demonstrates his eligibility under this criterion. 
The record includes a five-year recognition of service letter from his employer and several letters of 
support from former colleagues who commend his skills and decisiveness. One letter from a colleague 
speaks generally of the Petitioner's "fundamental contribution to [ the airline's] reorganization" 
following a recent global pandemic, asserting that he "has shown a masterful commitment to executing 
both of his roles by leading all communications that impact company pilots and contributing ideas to 
improve processes." The author also states that his "redesigned operational processes ... improved 
work productivity in different areas" and that he was "instrumental in developing communication 
campaigns such as fuel-saving initiatives, operational safety, among others, through a weekly 
newspaper called PilotNews." 
We note that these letters, while depicting the Petitioner's value in his role amongst his peers and to 
his company, are not supplemented by evidence specifying any achievements or significant 
contributions that he has made to the aviation industry or to pilots within the field of commercial flight. 
The Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 I&N Dec. at 376. The record does not satisfy this criterion. 
Because the Petitioner has not established that he meets three of the six evidentiary criteria under 
8 C.F.R. 204.5(k)(3)(ii), he has not met the initial requirement to demonstrate his eligibility as an 
individual of exceptional ability. Therefore, we need not conduct a final merits determination of 
whether he is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. Nevertheless, we have reviewed the totality of the 
evidence and conclude that he does not meet the elevated standard for this classification. While the 
Petitioner has experience as a commercial pilot, the record does not show that his level of expertise is 
unusual or stands out in the field. 
In sum, the Petitioner has not established eligibility for the EB-2 classification as an individual of 
exceptional ability. On appeal, the Petitioner does not assert nor does the record establish that he is 
eligible for the EB-2 classification as a professional holding an advanced degree. Therefore, he is 
ineligible 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). 
4 
III. CONCLUSION 
The Petitioner has not established that he meets the requirements of EB-2 classification. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
5