dismissed EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
In Re: 22681420 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 19, 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 
as a member of the professions holding an advanced degree as well as 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). 
The Director of the Texas Service Center denied the petition, concluding that although the record 
established that the Petitioner qualified for classification as a member of the professions holding an 
advanced degree, he 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. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
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. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 2 grant a national interest waiver if the petitioner demonstrates: (1) that 
the noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen 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. 3 
II. ANALYSIS 
The record reflects that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The next issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest under the 
Dhanasar analytical framework. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
In denying the petition, the Director decided that while the Petitioner's endeavor has substantial merit 
and that he is well-positioned to advance his endeavor, the Petitioner had not demonstrated the national 
importance of his particular proposed endeavor, or 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. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner indicated that he intended to work 
as a pilot in the United States, noting that he would "pilot and navigate the flight of fixed-wing, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
multi-engine aircraft, usually on scheduled air carrier routes." The Petitioner indicated that he intends to 
work for U.S. airlines, using his skill set "to help curtail the shortage of pilots in the U.S." He further 
claimed that in addition to working as a pilot, he "can work as a flight instructor for the aviation sector 
and serve as a seasoned pilot in flight training centers and schools." He further stated that his proposed 
endeavor will potentially impact the United States in the following ways: 
• Fill a position as a pilot that is vacant due to the shortage of airline pilots; 
• Serve as a flight instructor at flight schools; 
• Train newer generation of pilots; 
• Monitor engines, fuel consumption, and other aircraft systems to improve flight 
efficiency; and 
• Generate tax revenue. 
The Petitioner also submitted his resume, recommendation letters, and copies of articles and reports 
pertaining to the aviation industry. 
The Director issued a request for evidence (RFE) asking the Petitioner to provide further information 
and evidence regarding his proposed endeavor in the United States. In response, the Petitioner 
submitted an updated professional plan and statement, discussing his educational background and 
reciting his experience in the industry and the manner in which such experience has imparted expertise 
to him in the field. He further explained that his experience in the field of aeronautical sciences and 
commercial aviation would benefit U.S. aviation companies, noting that his experience as both a pilot 
and a flight instructor would help alleviate the shortage of commercial and private airline pilots in the 
United States. The Petitioner also provided further information pertaining to the U.S. aviation industry 
and the aviation industry's effect on the U.S. economy, including additional industry articles 
discussing the nature and status of the U.S. aviation industry, as well as additional letters of 
recommendation from colleagues and acquaintances in the field attesting to his background and 
qualifications as a pilot. 
Additionally, a letter from the Petitioner's counsel submitted in response to the RFE discusses the 
industry articles and reports submitted in support of the assertion that the Petitioner's expertise in the 
industry could potentially mitigate the shortage of pilots nationwide. According to counsel, the 
Petitioner is well qualified to serve both as a pilot and flight instructor based on his 25 years of 
experience in the field, and thus his endeavor will lessen the effects on the pilot shortage within the 
U.S. aviation industry. Counsel further claimed that the Petitioner's endeavor will substantially 
benefit the U.S. economy, U.S. societal welfare, and overall national interests, considering the 
widespread importance of the aviation industry. 
In the decision denying the petition, the Director determined that the Petitioner had not established the 
national importance of his proposed endeavor, noting that he had not shown that his proposed endeavor 
had significant potential to employ U.S. workers or otherwise offer substantial positive economic effects 
for the United States. The Director further determined that the Petitioner had not shown that the benefits 
to the national economy resulting from the proposed endeavor would reach a level contemplated by the 
Dhanasar framework. 
3 
On appeal, the Petitioner asserts that he has established, by a preponderance of the evidence, the 
national importance of his work, and that the Director's decision was in error because it "applied a 
stricter standard" of proof. With respect to the standard of proof in this matter, a petitioner must 
establish that he meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. at 375-76. In other words, a petitioner must show that 
what he claims is "more likely than not" or "probably" true. To determine whether a petitioner has 
met his burden under the preponderance standard, USCIS considers not only the quantity, but also the 
quality (including relevance, probative value, and credibility) of the evidence. Id. at 376; Matter of 
E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
The Petitioner further relies on the shortage of pilots in the U.S. aviation industry, and asserts that his 
proposed work as both a pilot and flight instructor will be in the national interest of the United States 
given the need for qualified individuals in the aviation industry due to such shortages. He claims that 
beyond filling a vacant pilot role, his ability to also serve as a flight instructor will help fill additional 
vacancies in the industry by training new pilots. In conclusion, the Petitioner claims that his proposed 
endeavor has national importance and substantial merit because "in a multifold approach it will help 
curtail an evident labor crisis in the field of aviation, which, in tum, is negatively affecting other 
commercial, societal, and economic areas." 
Preliminarily, we note that the Petitioner proposes to contribute to the aviation industry by applying 
for jobs as a pilot with various U.S. airlines. His proposed endeavor also includes serving as a flight 
instructor. The Petitioner did not provide a timeline for when he would occupy each of these roles 
and it is not apparent whether securing a position in either of these areas is the proposed endeavor or 
whether the proposed endeavor involves the Petitioner performing these roles either simultaneously 
or consecutively. Overall, we have insufficient information concerning the proposed endeavor with 
which to determine whether it has both substantial merit and national importance because the 
Petitioner's proposed endeavor has not been clearly defined. Despite the Director's finding to the 
contrary, the Petitioner has not submitted persuasive evidence to support a finding of substantial merit. 
The Petitioner bears the burden to both affirmatively establish eligibility under the Dhanasar framework, 
of which substantial merit is one piece, and establish his eligibility by a preponderance of the evidence. 
See Matter ofChawathe, 25 I&N Dec. at 376. 
In determining national importance, the relevant question is not the importance of the field, industry, 
or profession in which the individual will work; instead, we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we 
further noted that "we look for broader implications" of the proposed endeavor and that "[aa ]n 
undertaking may have national importance for example, because it has national or even global 
implications within a particular field." Id. We also stated that "[a]n endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national importance." Id. 
at 890. 
Here, it remains unclear as to what specifically the Petitioner's proposed endeavor involves. We do 
not know if the Petitioner intends to perform both functions he describes or whether he will perform 
in only the first job he secures. In addition, we have little clarity on which position, if any, he will 
obtain. In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign 
4 
national proposes to undertake." See id. at 889. While it may include one or both of the positions 
outlined above, we conclude that the Petitioner has not provided a specific or consistent proposed 
endeavor activity such that we can determine its substantial merit and national importance. 
Throughout the record, the Petitioner points to his background, education, and experience in his field, 
noting on appeal that he has extensive professional experience supported by extensive flight training 
and certificates, and that he holds the highest ranked license in the Federal Aviation Administration. 
The Petitioner's knowledge, skills, and experience in his field, however, relate to the second prong of the 
Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. 
at 890.4 The issue here is whether the specific endeavor that he proposes to undertake has national 
importance under the second consideration of Dhanasar's first prong. To evaluate whether the 
Petitioner's proposed endeavor satisfies the national importance requirement, we look to evidence 
documenting the "potential prospective impact" of his work. 
Initially, we note that while the Petitioner, as a pilot, may fly nationally or internationally for private 
or commercial U.S. airlines, simply having a global route does not establish that the endeavor has a 
global impact. To the extent that the Petitioner's proposed endeavor can be understood, we conclude 
that he has not substantiated how his specific work in the aviation industry will address a pilot shortage 
or positively impact the economy. Specifically, how one pilot will improve a national shortage or will 
trigger substantial positive economic impacts has not been explained. Even assuming the Petitioner 
chooses to pursue his ideas concerning working as a flight instructor, which may affect others' careers 
in addition to his own, he has not provided sufficient information of how his services in these areas 
would rise to the level of national importance. While such endeavors may impact the individual 
students, pilots, employers, or airlines that the Petitioner works with, the national importance of this 
work has not been adequately explained or substantiated. Similarly, in Dhanasar, we determined that 
the petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. 
The Petitioner claims that his proposed endeavor has national importance because the United States 
faces a significant national and potentially global pilot shortage. In addition, the Petitioner asserts that 
pilots and the field of aviation are extremely important to the economy and that his proposed endeavor 
will offer substantial positive economic impacts. In support of both his arguments concerning pilot 
shortages and positive economic impacts, he offered numerous articles about the flight industry, its 
economic implications, and the challenges faced by airlines and pilots. While these articles provide 
useful background information, they are of limited value in this matter, as the Petitioner's specific 
proposed endeavor is unclear. 5 Furthermore, in determining national importance, the relevant question 
4 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing her expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by 
demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise. See Dhanasar, 
26 T&N Dec. at 886 n.3. 
5 We further note that the Petitioner's counsel refers to these reports and articles throughout the record, asserting that the 
status of the U.S. aviation industry impacts many different industries, such as U.S. trade and commercial operations. On 
5 
is not the importance of the industry or profession in which the individual will work; instead we focus 
on the "the specific endeavor that the foreign national proposes to undertake." Id. at 889. As discussed 
above, it is not apparent that the Petitioner's proposed endeavor activities would operate on such a 
scale as to rise to the level of national importance. It is insufficient to claim an endeavor has national 
importance or will create a broad impact without providing evidence to corroborate such claims. The 
Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
The Petitioner further contends that the Director did not duly consider certain pieces of evidence and 
failed to apply the correct standard of proof when reviewing the evidence. In support, he relies primarily 
upon the evidence and arguments previously submitted. While we acknowledge the Petitioner's appellate 
claims, we nevertheless conclude that the documentation in the record does not sufficiently establish the 
national importance of the proposed endeavor as required by the first prong of the Dhanasar analytical 
framework. For example, while the Petitioner submitted numerous letters of recommendation from 
other pilots and colleagues in the field, none of the authors discussed the Petitioner's proposed future 
endeavor. Instead, the authors primarily focused on the Petitioner's past work experience and 
accomplishments. Although the record contains statements regarding the Petitioner's lengthy career 
in the aviation industry, and although the letter writers praise the Petitioner's qualifications and 
commend his work, we have insufficient information concerning the Petitioner's proposed future 
endeavor with which to make a determination concerning its substantial merit and national importance. 
Here, the Petitioner has not identified how much time he will spend working as a pilot as opposed to 
working as a flight instructor. Again, in determining national importance, the relevant question is not 
the importance of the industry or profession in which the individual will work; instead we focus on 
the "the specific endeavor that the foreign national proposes to undertake." Dhanasar 26 I&N at 889. 
Because the Petitioner has not provided sufficient information and documentation regarding his 
proposed endeavor, we cannot conclude that he meets the first prong of the Dhanasar framework. 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 his eligibility under the second and third 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 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. 
appeal, counsel emphasizes the Petitioner's experience in the field and generally asserts that his proposed endeavor to 
work as a pilot and flight instructor will alleviate the pilot shortage and help the national economy by allowing the 
uninterrupted movement of people, business, and cargo. However, assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980)). Counsel's statements must be substantiated in the record with independent evidence, which may include affidavits 
and declarations. 
6 
ORDER: The appeal is dismissed. 
7