dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
InRe: 26407717 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 04, 2023 
Form 1-140, Immigrant Petition for Alien Worker (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/or 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualified for the EB-2 immigrant classification. In addition, the Director 
concluded that the Petitioner was not eligible for, and did not merit, a national interest waiver of the 
job offer requirement. 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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. If a doctoral degree is customarily required for the specialty, the non-citizen must a United 
States doctorate or a foreign equivalent 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) . 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
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 aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual /volume-6-part-f-chapter-5. 
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 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. 
II. EB-2 CLASSIFICATION 
The Petitioner submitted evidence of his career as a commercial pilot, and indicated on Form I-140, 
Immigrant Petition for Alien Workers, that the job title of his proposed endeavor was "commercial 
and private pilot." He did not offer a more detailed description of this endeavor in the record, stating 
only that it was his intention "to work as an outstanding experienced Airline Transport Pilot." 
A. Member of the Professions Holding an Advanced Degree 
Because the Petitioner did not indicate in his initial submission or in response to the Director's request 
for evidence (RFE) whether he intended to qualify as a member of the professions holding an advanced 
degree or as an individual of exceptional ability, we will consider both. Regarding the former, the 
Petitioner did not claim or submit evidence that he holds a United States bachelor's degree or a foreign 
equivalent, which is the minimum level of education needed to qualify. Rather, on ETA Form 9089, 
Application for Permanent Employment Certification, he indicated that the highest level of education 
he achieved was an associate's degree. Although he listed a Bachelor of Science degree in a brief 
summary of his career accomplishments, there is no evidence of this degree or others that might be 
equivalent to the stated associates degree. 
The Petitioner also checked the box for "other" in Part J of the form, but this appears to refer to the 
numerous training courses he completed over the course of his career, as evidenced by several 
certificates and other evidence. As there is no evidence that any of these certificates are the equivalent 
of a United States bachelor's degree, the record does not establish that the Petitioner is eligible as a 
member of the professions holding an advanced degree. 
3 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
B. Individual of Exceptional Ability 
Turning to the Petitioner's eligibility as an individual of exceptional ability, the Director looked to the 
ETA Form 9089 and determined that "the minimum requirements for the position do not demonstrate 
it requires an alien of exceptional ability." However, in reaching this conclusion, the Director relied 
upon caselaw relating to the labor certification process. Because an individual requesting a national 
interest waiver seeks to avoid the EB-2 classification's job offer requirement, and thus the labor 
certification process, this caselaw is not applicable to such a petition. Further, there is no requirement 
in the statute or pertinent regulations that petitioners seeking a national interest waiver must show that 
their endeavor requires an individual of exceptional ability. We therefore withdraw that portion of the 
Director's decision. 
As the Petitioner did not specify whether he intended to qualify as an advanced degree professional or 
an individual of exceptional ability, he also did not specify for which of the evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii) he intended to qualify, and does not do so on appeal. Nevertheless, we will 
briefly address each of the criteria for which applicable evidence was submitted. 4 However, we will 
not consider the additional evidence he submitted on appeal. Where, as here, a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. Matter of Soriano, 
19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The Director's 
RFE notified the Petitioner of the deficiencies in the evidence under the evidentiary criteria, providing 
him with sufficient notice and opportunity to respond. 
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; 8 C.F.R. § 204.5(k)(3)(ii)(A) 
As noted above, the record includes several certificates earned by the Petitioner over the course of his 
career as a pilot, with most having to do with his certification to fly different models and types of 
aircraft. However, all but one of these are not accompanied by official academic records naming the 
courses completed, any marks received, and the number of credits or hours. The certificate issued by 
the Center for Aeronautical Training and Evaluation of the indicates that 
the Petitioner completed the airline transport pilot course, and lists the courses taken and hours devoted 
to each course. However, the record is insufficient to establish that the issuer qualifies as an institution 
of learning in the field of commercial aviation. 
The record also includes the Petitioner's transcripts for courses taken at the University Institute of 
However, the English translation accompanying this document is not properly 
certified per 8 C.F.R. § 103.2(b)(3), and thus cannot be considered. In addition, even if the translation 
was certified as complete and accurate by the translator, it does not appear that this course of study 
related to the Petitioner's claimed area of exceptional ability as a pilot, as the bulk of the courses relate 
to economics or marketing. 
4 The record does not include evidence submitted initially or in response to the Director's RFE which pertains to the criteria 
at 8 C.F.R. §§ 204.5(k)(3)(ii)(D), (E) and (F). 
3 
For the reasons given above, the evidence is insufficient to establish that the Petitioner meets this 
criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of fitll-time experience in the occupation for which he or 
she is being sought; 8 C.F.R. § 204.5(k)(3)(ii)(B) 
This criterion requires evidence in the form of letters from current of former employers. While the 
Petitioner submitted letters from friends and colleagues attesting to his 45 years of experience in the 
airline industry and more than 13,000 hours of flight time, these are not sufficient to meet this criterion. 
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 Petitioner submitted documentation which shows that he held commercial and airline transport 
pilot licenses in Venezuela and the United States. But this evidence shows that all of these licenses 
expired well before the filing date of this petition. As the regulation is phrased in the present tense, 
this evidence is insufficient to establish that as of the date the petition was filed, the Petitioner held 
licenses which would meet this criterion. 5 
C. Final Merits Determination 
Per the discussion above, the Petitioner has not submitted evidence which meets the requirements of 
any of the evidentiary criteria. As such, he has not met the initial evidence requirement for 
classification as an individual of exceptional ability, and we need not conduct a final merits 
determination. Nonetheless, we have reviewed the totality of the record and determined that it does 
not establish that the Petitioner has been recognized as having a degree of expertise significantly above 
that ordinarily encountered in the field. Specifically, although he appears to have years of experience 
as a commercial airline pilot and maintained his proficiency through training, the evidence does not 
demonstrate that he stood amongst his peers or was recognized as having the high degree of expertise 
required for this classification. 
III. NATIONAL INTEREST WAIVER 
Because the Petitioner has not established his eligibility for the underlying EB-2 immigrant 
classification, he is not eligible for a national interest waiver. Further, the Petitioner does not 
specifically challenge any of the Director's conclusions regarding his national interest waiver claim 
on appeal, and we therefore deem that claim to be waived. See, e.g., Matter of M-A-S-, 24 I&N Dec. 
762, 767 n.2 (BIA 2009). 
5 The Director indicated in his RFE that this criterion had been met, but did not address this or any other evidentiary criteria 
in his final decision. 
4 
III. CONCLUSION 
The Petitioner has not established his eligibility for the underlying EB-2 immigrant classification as 
either a member of the professions holding an advanced degree or an individual of exceptional ability. 
In addition, he does not specifically challenge the Director's conclusions regarding his request for a 
national interest waiver, and has not otherwise shown that he is eligible for and otherwise merits the 
waiver. The petition will remain denied. 
ORDER: The appeal is dismissed. 
5