dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 20, 2024 In Re: 24217138 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as 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 qualifies as an individual of exceptional ability. The Director further 
concluded that the Petitioner 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 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
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 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
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 individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov /policy-manual/volume-6-part-f-cbapter-5. 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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. 
Id. 
II. ANALYSIS 
As noted above, the Director concluded that the record did not establish that the Petitioner qualified 
for classification as an individual of exceptional ability. Specifically, although the Petitioner asserted 
that he satisfied the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (C) and (F), the Director 
concluded that the Petitioner satisfied (A) and (C). On appeal, the Petitioner does not pursue his initial 
claim that he meets the criterion relating to evidence of at least ten years of foll-time experience in the 
occupation for which is being sought. We therefore consider this issue abandoned. 4 On appeal, the 
Petitioner reasserts that he satisfies the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(F). For the reasons 
discussed below, the record does not establish that the Petitioner has satisfied at least three of the six 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
A. Evidence of Recognition for Achievements and Significant Contributions to the Industry 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence of recognition for achievements 
and significant contributions to the industry or field by peers, governmental entities, or professional 
or business organizations." The Director discussed the two letters submitted in support of this 
criterion, one from the Petitioner's prior employer and one from his current employer. The Director 
acknowledged that the letters compliment the Petitioner's work but did not elaborate regarding the 
Petitioner's recognition for achievements and significant contributions to the industry or field as a 
3 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 USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
4 See Matter of R-A-M-, 25 T&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). See also Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09 -
CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to 
raise them on appeal to the AAO). 
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whole. On appeal, the Petitioner reiterates previous statements made in the initial petition and in 
response to the Director's request for evidence and does not provide any new evidence or arguments 
which overcome the Director's determination. 
For this criterion, the Petitioner must establish that the claim that he has received recognition for 
achievements and significant contributions to the industry or field of aviation by peers, governmental 
entities, or professional or business organizations is probably true. See id. The letters from the 
Petitioner's prior and current employers are relevant to the issue because they are from business 
organizations, but they bear minimal probative value. See 8 C.F.R. § 204.5(k)(3)(ii)(F); see also 
Matter ofChawathe, 25 I&N Dec. at 76. 
The letter from the Petitioner's former employer, Iwritten by a Captain and Director of 
Training, confirmed that the Petitioner was employed as a first officer. Much of the letter discusses 
how the Petitioner worked beyond his ordinary duties as first officer and "performed extraordinary 
rescue missions worthy of high praise and bravery in a time of life-threatening ecological disaster in 
Venezuela in 2015," by volunteering to fly humanitarian missions to transport victims to safety. The 
author stated that the Petitioner "inspired other pilots and set an example of bravery and selfless 
proactivity in a time of need," and he was able to complete this mission due to his technical abilities 
and professional aptitude. While we agree that the Petitioner performed an admirable mission, the 
letter did not address how the Petitioner's volunteer work assisting during this disaster relief 
demonstrates that he received recognition for achievements and significant contributions to the 
industry or field of aviation. Without more, achievements or significant contributions to a particular 
entity are not automatically achievements or significant contributions to a greater industry or field 
merely because the entity operates within a greater industry or field. 
Although the letter from the Petitioner's current employer is also relevant, it also bears minimal 
probative value. The letter from the Petitioner's current employer indicated that it intended to hire the 
Petitioner, and it briefly summarized what his duties would be. The letter also stated that the Petitioner 
has "performed various international flights on the McDonnell Douglas MD-83 aircraft," and has 
"assisted in the execution of vital rescue missions during the COVID-19 Pandemic which involved 
transporting individuals stranded abroad back to the United States." While the letter details 
achievements and contributions by the Petitioner, it does not explain how these achievements and 
contributions significantly affected the aviation industry. Therefore, the probative value of the letters 
from the Petitioner's current employer is diminished. Because the record does not contain evidence 
of recognition for achievements and significant contributions to the industry or field of aviation by 
peers, governmental entities, or professional or business organizations, it does not satisfy the criterion 
at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
B. Reserved Issue 
Per the analysis above, the Petitioner has not established that he meets at least three of the six criteria 
at 8 C.F.R. § 204.5(k)(3)(ii). Since the Petitioner did not satisfy the initial evidence requirements, we 
need not conduct a final merits analysis to determine whether the evidence in its totality shows that he 
is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) 
( stating that, like courts, federal agencies are not generally required to make findings and decisions 
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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). 
II. NATIONAL INTEREST WAIVER 
The Petitioner has not established his qualification for the requested EB-2 classification and is 
therefore ineligible to be granted a national interest waiver as a matter of discretion. Although the 
Petitioner asserts on appeal that he meets all three of the prongs under the Dhanasar analytical 
framework and that the Director erred in concluding otherwise, we will reserve these issues. See 
Bagamasbad, 429 U.S. at 25-26; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
Because he did not submit sufficient evidence to satisfy three of the six criteria at 8 C.F.R. § 
204.5(k)(3)(ii), the Petitioner has not established that he is eligible to be classified as an individual of 
exceptional ability in the sciences, arts, or business. Accordingly, the petition will remain denied and 
the appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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