dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 11, 2023 In Re: 28110130 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an airline pilot, seeks classification as a member of the professions holding an advanced 
degree or, in the alternative, as an individual of exceptional ability in the sciences, arts or business . 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). He 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. § l 153(b)(2)(B)(i). 
The Director of the Texas Service Center denied the petition in May 2022, concluding that the record 
did not establish that the Petitioner qualifies for EB-2 classification as a member of the professions 
holding an advanced degree or as an individual of exceptional ability. The Director further determined 
that the Petitioner did not merit a national interest waiver as a matter of discretion. 
Later, the Petitioner filed combined motions to reconsider and reopen, which the Director dismissed 
in January 2023. The Director dismissed the motion to reconsider determining that the Petitioner had 
not demonstrated that the denial was 1) based on an incorrect application of law or policy, and 2) 
incorrect based on the evidence in the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). The 
Director also reviewed the new evidence submitted in support of the motion to reopen and ultimately 
concluded that it was insufficient to overcome his previous determination that the Petitioner was 
ineligible for both the EB-2 classification and a national interest waiver. 8 C.F.R. § 103.5(a)(2). 
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 of Chawathe, 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. 
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. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability in the sciences, arts, or business is defined in 8 C.F.R. § 204.5(k)(2) as a degree of 
expertise significantly above that ordinarily encountered in the sciences, arts, or business. To qualify 
as an individual of exceptional ability, 8 C.F.R. § 204.5(k)(3)(ii) sets forth six criteria, of which an 
individual must meet at least three. If a petitioner satisfies these initial requirements, we then consider 
the entire record to determine whether the individual has a degree of expertise significantly above that 
ordinarily encountered. See Matter ofChawathe, 25 I&N Dec. at 376 (holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality"). See also Kazarian v. USCIS, 596 
F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted and then, 
if it satisfies the required number of criteria, considered in the context of a final merits determination); 
See 6 USCIS Policy Manual F.2, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. at 884. Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as 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. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration 
on these three prongs. 
II. EB-2 CLASSIFICATION 
The Petitioner claimed EB-2 eligibility as both an advanced degree professional and as an individual 
of exceptional ability. The Director evaluated the evidence submitted in support of the petition and 
concluded in the denial that the Petitioner did not establish his EB-2 eligibility under either avenue. 
Later, on motion he reaffirmed his determinations in this regard. 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner contends that he qualifies as a member of the professions holding an advanced degree, 
and provided evidence, including copies of his diploma and course transcripts, certified English 
translations, and a "course-by-course foreign academic evaluation" demonstrating that he holds the 
U.S. equivalent of a high school diploma. The Director determined in his denial and reaffirmed on 
motion that the Petitioner does not possess an advanced degree as defined at 8 C.F.R. § 204.5(k)(2). 
We agree. 
In order to show that a Petitioner holds a qualifying advanced degree, the pet1t10n must be 
accompanied by "[a]n official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). On appeal, the Petitioner does 
not assert nor the does record show that he possesses a United States advanced degree or a foreign 
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equivalent degree. Id. Alternatively, a petitioner may present "[a]n official academic record showing 
that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in 
the form ofletters from current or former employer(s) showing that the alien has at least five years of 
progressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
To qualify as an advanced degree professional, a petitioner relying on foreign education must have a 
single, foreign degree that equates to at least a U.S. baccalaureate degree. The regulations do not allow 
baccalaureate equivalents based on combinations of lesser educational credentials or of education and 
experience. See Employment-Based Immigrant Petitions, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) 
(stating that "both the Act and its legislative history make clear that, in order to .... have experience 
equating to an advanced degree under the second [preference category], a [ noncitizen] must have at 
least a bachelor's degree") (emphasis added). 
On appeal, the Petitioner submits an evaluation of his work experience from ~--------~ [G-] in which G- concludes that his work experience is "equivalent to the U.S. degree of Bachelor of 
Science in Aeronautical Science awarded by a regionally accredited university in the United States." 
G-'s conclusion is based on a review of the Petitioner's "work history, affidavit, and letters issued by 
employers detailing his professional employment and job responsibilities." 
In cases involving foreign degrees, USCIS may favorably consider a credentials evaluation performed 
by an independent credentials evaluator who has provided a credible, logical, and well-documented 
case for an equivalency determination that is based solely on the individual's foreign degree(s). 
Opinions rendered that are merely conclusory and do not provide a credible roadmap that clearly lays 
out the basis for the opinions are not persuasive. See 9 USCIS Policy Manual F.5, 
https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-9. G-' s evaluation does not focus 
solely on the Petitioner's academic credentials and does not suggest that he possesses at least a single, 
foreign degree that equates to at least a U.S. baccalaureate degree, as required. 
It is important to understand that any educational equivalency evaluation performed by a credentials 
evaluator or school official is solely advisory in nature and that the final determination continues to 
rest with [USCIS]. Id. (See also Matter o_f Caron International, 19 I&N Dec. 791 (Comm. 1988), 
Matter ofSea, Inc. 19 I&N Dec. 817 (Comm 1988), and Matter ofHo, 19 I&N Dec. 582 (BIA 1988).) 
We conclude that this credential evaluation is of little probative value to the issue at hand. Matter of 
Chawathe, 25 I&N Dec. at 376. Accordingly, the Petitioner has not established his eligibility for the 
requested EB-2 classification as an advanced degree professional. 
B. Exceptional Ability 
The Director concluded in the denial, then reaffirmed on motion, that the Petitioner did not satisfy the 
plain language requirements of at least three criteria. Specifically, the Director determined that the 
Petitioner fulfilled only the experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and the license 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). However, for the following reasons, we withdraw the 
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Director's conclusion that the Petitioner did not meet the degree criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
In dismissing the Petitioner's motion to reopen, the Director explained that the evidence regarding his 
academic achievements provided in support of this criterion was insufficient as his high school 
diploma does not meet the plain language requirements under this criterion; noting for instance, that 
the Petitioner did not show that his high school-level program of study was related to aviation, his 
claimed area of exceptional ability. On appeal, the Petitioner does not address the Director's specific 
concerns about this evidence. We agree with the Director that the Petitioner's foreign education that 
has been determined to be equivalent to a U.S. high school diploma does not meet the plain language 
requirements for this criterion. 
Turning to the G-' s evaluation of the Petitioner's work experience, we incorporate our previous 
discussion of this newly provided evidence on appeal, noting that G-'s evaluation does not analyze the 
Petitioner's academic achievements, but instead focuses on his work experience. The Petitioner does 
not adequately explain on appeal how his years of work experience, which qualify him for the 
experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), also meet the plain language requirements under 
this criterion. 
The Director concluded that the Petitioner had not substantiated his assertion that his airline pilot 
training certificates are "the academic equivalent to a PhD/Doctorate," as he had not provided 
authoritative evidence to show that they are equivalent to any type of degree. Chawathe, supra. While 
we agree with the Director's conclusion in this regard, we note that a petitioner need not show that he 
possesses a degree or a diploma from a college or university in order to meet the plain language of this 
criterion. 
The record shows the Petitioner plans to offer commercial airline pilot services to U.S. employers and 
has provided evidence, including his airline pilot training certificates, resume, flight logs, and pilot 
licenses, as well as letters from colleagues and former employers to establish that he attended various 
airline pilot training programs offered at flight schools in order to work as a commercial airline pilot. 
We conclude that the Petitioner has submitted documentation sufficient to meet the plain language of 
this criterion. 
As the Petitioner has satisfied the initial regulatory requirements at 8 C.F.R. § 204.5(k)(3)(ii), we will 
consider the entire record to determine whether the individual has a degree of expertise significantly 
above that ordinarily encountered in a final merits determination as discussed above. 1 8 C.F.R. § 
204.5(k)(2). 
We first observe that the Petitioner's training credentials, experience, and licensure as an airline pilot 
does not automatically render him an individual of exceptional ability because these types of 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
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qualifications are part of the normal course of employment and professional development in the field 
of aviation. We acknowledge that the Petitioner submitted letters from colleagues and former 
employers who verified his employment history and indicate that he is an experienced airline pilot 
who has performed well in positions of responsibility within the field of aviation. 
On appeal, the Petitioner "reinstate[s] arguments" and generally references evidence previously 
considered by the Director and asserts that this material is sufficient to "secure an approval for the 
benefit sought." But he does not further address how he qualifies as an individual of exceptional 
ability. The Petitioner provided a "professional plan" in response to the Director's request for evidence 
(RFE) in which he outlines the work that he performed as an airline pilot, noting for instance that at 
the age of 26 he became a fust officer on a Boeing 747-400, and eventually becjme "the [c]aptain of 
a wide-body jet at the age of 33 for a major international airline based in " He references his 
employment verification letters and emphasizes that the authors describe him as being "committed to 
[working as] a pilot," and as an individual has performed his airline piloting duties with 
"professionalism." The Petitioner has also provided evidence, such as media articles covering various 
aspects of the aviation industry in which the challenges and complexities involved in operating jet 
airplanes are described. He states in his professional plan: 
My role as a Captain involves leading a team of crew members in safety-critical tasks 
under strict time constraints. I must operate under the strictest regulations and policies 
concerning safety and efficiency, which also encompass legal, technical, and 
environmental factors. My performance and use of resources is closely monitored -
especially fuel - as it accounts for 40% of the total cost of the business. I am also in 
charge of time management, ensuring that operations are conducted in compliance with 
a tight schedule, while protecting safety and security at all times, and satisfying 
company-required costs as much as possible. 
The airline pilot tasks and responsibilities described by the Petitioner in his professional plan appear 
to be in keeping with those typically performed by those employed in the "Commercial Pilots" 
occupation. See the Department of Labor's Occupational Information Network (O*NET) summary 
report for "Commercial Pilots" which may be viewed at https://www.onetonline.org/link/summary/53-
2012.00. But without more, the Petitioner has not shown how the successful performance of his duties 
and responsibilities as a commercial airline pilot establish that he has been recognized for his 
achievements and contributions in the aviation field, or that he otherwise possesses expertise 
significantly above that normally encountered therein. 
The Petitioner submitted an opinion letter from I I[A-] in his RFE response. A­
opined that the "[Petitioner's] credentials in the area of piloting undoubtedly demonstrate that he is a 
person of exceptional ability." In her analysis, she discusses the Petitioner's work experience, 
certifications and licensure, noting "he has served on both domestic and international flights and 
accrued almost 15,000 flight hours" and asserts that his employment "[as] pilot in command of the 
Boeing 777 is a significant achievement, as this is one of the largest and most advanced aircraft." 
A- also highlights the Petitioner's many years of work experience as an airline pilot, and states "the 
evidence proves that [the Petitioner] has the ability to maintain safety and make good decisions - a 
skill which his peers have commended him on." She incorporates excerpts of the Petitioner's 
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professional plan as a means to outline his training, skills and experience, and also quotes from the 
reference and employment letters which we have already discussed noting, among other things, that 
the Petitioner is "committed to his professionalism as an aviator," is "an honest hard-working man," 
and that while working as a pilot "he [took] no sick leave for the year ending in June 2021 ... " 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter ofCaron Int'!, Inc., 19 I&NDec. 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. Here, A- does not substantively document or analyze the specific ways in 
which the Petitioner has made significant contributions to his field, or adequately explain how his 
"recognition" by his former employers and work colleagues is indicative of his asserted exceptional 
ability as an airline pilot. Therefore, we conclude that her evaluation of the Petitioner's credentials 
does not persuasively demonstrate that the Petitioner is an individual of exceptional ability as 
contemplated by section 203(b )(2)(B)(i) of the Act and 8 C.F.R. § 204.5(k)(2). 
Collectively considering the evidence of record, we conclude the Petitioner has not adequately 
demonstrated the nature of his specific contributions to the field of aviation, supported by 
documentary evidence. For instance, he has not explained how his pilot training and his license, both 
required for entry into the profession, demonstrate his exceptional ability. Though he has provided 
reference letters, they were not accompanied by corroborative evidence showing the impact of the 
Petitioner's work in the field, such as examples of the implementation of his piloting or training 
strategies, methodologies or innovations, or how the Petitioner's work has otherwise been recognized 
outside of organizations where he has been employed. Chawathe, supra. For the foregoing reasons, 
we determine that the Petitioner has not established that he possesses a degree of expertise 
significantly above that ordinarily encountered in the field of aviation as an individual of exceptional 
ability. 
The Petitioner has not established eligibility as an individual of exceptional ability or as an advance 
degree professional under section 203(b )(2)(A) of the Act. Therefore, he is ineligible for the EB-2 
classification. 
II. NATIONAL INTEREST WAIVER 
The Director considered the Petitioner's claims under the three prongs of Dhanasar and determined 
in dismissing the Petitioner's motion to reopen that he only established the substantial merit of his 
proposed endeavor. Regarding national importance, the Director reviewed and analyzed the 
Petitioner's claims including his professional plan, A-'s advisory opinion letter, and industry reports 
and articles and discussed their deficiencies. On appeal, the Petitioner submits a brief which generally 
references arguments which were considered by the Director in denying the petition and dismissing 
the motions and contends that the evidence of record is sufficient to establish his eligibility for the 
immigration benefits sought in the petition. He does not, however, provide any new evidence or 
arguments which overcome the Director's determinations. 
Therefore, we adopt and affirm the Director's decision as it relates to this prong. See Matter of 
Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 
1997) (noting that the practice of adopting and affirming the decision below has been "universally 
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accepted by every other circuit that has squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight U.S. Court of Appeals in holding the appellate adjudicators may adopt and 
affirm the decision below as long as they give "individualized consideration" to the case). 
Because the Petitioner has not established the national importance of his proposed endeavor as 
required by the first prong of the Dhanasar precedent decision, he has not demonstrated eligibility for 
a national interest waiver, as a matter of discretion. 2 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 the two remaining Dhanasar 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 ofL-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 
The burden of proof in these proceedings rests solely with the Petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. 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. 
2 See Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver 
to be discretionary in nature). 
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