dismissed EB-2 NIW Case: Aviation Maintenance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 10, 2024 In Re: 33380391 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an aviation maintenance specialist, 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 neither 
establishes that the Petitioner qualifies as an individual of exceptional ability, nor does it establish that 
the Petitioner is eligible for a national interest waiver as a matter of discretion. 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 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 
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 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
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 confinn ed 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-p art-f-chapter-5 . 
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. Matter of Dhanasar, provides the framework for adjudicating 
national interest waiver petitions. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016). 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. 
Dhanasar, 26 I&N Dec. at 889. 
II. ANALYSIS 
The Petitioner asserts that he is eligible for EB-2 classification as an individual of exceptional ability. 
The Director concluded that the Petitioner met two of the six criteria; that he has a degree in the area 
of exceptional ability and ten years of foll-time experience in the occupation. 8 C.F.R. 
§ 204.5(k)(3)(ii)(A),(B). The Director stated that the Petitioner did not establish he commanded a 
salary which demonstrates exceptional ability and that the recommendation letters do not establish 
recognition for achievements and significant contributions to the industry or field. 8 C.F.R. 
§ 204.5(k)(3)(ii)(D), (F). On appeal, the Petitioner contends that the Director did not properly analyze 
the evidence and information in the record regarding these two criteria at § 204.5(k)(3)(ii)(D), (F). 
However, he does not address any other criteria on appeal such as subparts (C) and (E) of 8 C.F.R. 
§ 204.5(k)(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 ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). Therefore, 
our analysis will only address the issues raised on appeal. After de novo review of the evidence, we 
conclude that the Petitioner does not meet at least three of the six required criteria, nor has he 
established that he possesses a degree of expertise significantly above that ordinarily encountered in 
his field. 
The Director stated that the Petitioner did not establish he commands a salary which demonstrates 
exceptional ability under 8 C.F.R.§ 204.5(k)(3)(ii)(D). The Director noted that the submitted tax 
return was from 2021 but the salary survey in the record was from 2023; therefore, the evidence is not 
comparable. On appeal, the Petitioner contends that the evidence is comparable as salaries rise each 
year, but the Petitioner's 2021 salary is higher than the 2023 salary survey, and this shows his 
exceptional ability relative to others working in the field. However, in addition to offering data from 
different time periods to compare, another problem with the submitted salary evidence is that the 
record does not establish the Petitioner's employment and source of income in 2021. The tax return 
reports his gross income in 2021, however, the record only establishes his employment up to 2019. 
Therefore, we cannot determine if the Petitioner's 2021 salary was earned as the "Average Aviation 
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 USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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Technician Salary in Colombia for 2023." As we cannot confirm what his job title was and where he 
was working in 2021, we cannot conclude that this is comparable evidence. In addition, the record 
also contains the Petitioner's 2020 tax return in which this same line item for gross income states "0." 
It appears that in 2020 he may have had no income at all, which raises more questions about how he 
earned his income in 2021. Since the record does not contain sufficient information about the 
Petitioner's salary and the wage data in the same period, the record does not establish that he has 
commanded a salary which demonstrates exceptional ability. 
In addition, the Director concluded that the recommendation letters the Petitioner submitted describe 
the Petitioner's "ability experience, and positive personal characteristics," but they do not specify how 
he has been recognized for achievements and significant contributions to the industry or field. 
8 C.F.R.§ 204.5(k)(3)(ii)(F). 
On appeal, the Petitioner asserts that the letters do show his recognition and contribution. He 
highlights a few of the letters, which we have reviewed. The first letter he highlights is one which 
speaks to the Petitioner receiving a medal for his "distinguished services to Naval Aviation" and his 
knowledge and training as a military instructor. The Petitioner contends that, "[t]raining military 
personnel in aviation is a contribution of major significance to the field because through this training 
[the Petitioner] directly contributed to the safety and success of military operations, which is a matter 
of high stakes." This letter does confirm that the Petitioner earned an award for his "[q]ualities as a 
leader and experience as an aeronautical maintenance non-commissioned officer" and that he indeed 
served as a military instructor, but it does not discuss any "significant contributions to the industry" 
that are attributable to the Petitioner. Although this letter speaks to the Petitioner's contribution to his 
employer and that he contributed to the safety and success of the military operations he assisted in, it 
does not describe any significant contributions to the industry of aviation or aviation maintenance. 
The next letter discusses the Petitioner earning two medals and being selected to "carry out courses 
abroad." The last letter speaks of promoting the Petitioner for new positions and medals "for his 
excellent professionalism and military virtues," and the courses he taught. These letters of 
recommendation all describe how the Petitioner has been recognized by his peers for contributions to 
his direct employer and his experience in the field, but they do not speak to broader contributions to 
the field of aviation or aviation maintenance. We recognize the Petitioner is very experienced in his 
field; however, the record does not establish he made significant contributions to the industry and 
therefore this criterion has not been met. 
For the reasons given above, the evidence does not establish that the Petitioner meets the eligibility 
requirements as an individual of exceptional ability and therefore does not meet the requirements for 
EB-2 classification. Because the Petitioner has not established that he meets the minimum required 
criteria under 8 C.F.R. § 204.5(k)(3)(ii), we need not conduct a final merits determination. 
Nevertheless, we advise that we have reviewed the record in the aggregate, concluding that it does not 
support a finding that the Petitioner has established that he possesses a degree of expertise significantly 
above that ordinarily encountered in his field. 
While we do not discuss each piece of evidence individually, we have reviewed and considered the 
record in its entirety. The Petitioner has not established his qualification for the EB-2 classification 
as an individual of exceptional ability in the sciences, arts, or business, and is therefore ineligible for 
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a national interest waiver. While the Petitioner asserts on appeal that he meets all three of the prongs 
under the Dhanasar analytical framework, we reserve our opinion regarding these issues. 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 ofL-A-C-, 26 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where the applicant did 
not otherwise meet their burden of proof). 
III. CONCLUSION 
We conclude by a preponderance of the evidence that the Petitioner has not established that he qualifies 
as an individual of exceptional ability, or that he is otherwise eligible for the underlying EB-2 
immigrant visa classification and therefore is not eligible for a national interest waiver as a matter of 
discretion. 
ORDER: The appeal is dismissed. 
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