dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 12459048 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a business executive, seeks classification as a member of the professions holding an 
advanced degree or, in the alternative, an individual of exceptional ability in the sciences, arts or 
business. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Petitioner 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. § 1153(b )(2)(B)(i). 
U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the 
required job offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualifies 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. 
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). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as matter of discretion, 1 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 See also 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). 
2 
national' s contributions; and whether the national interest in the foreign national' s contributions is 
sufficiently urgent to warrant forgoing the labor certification process . In each case, the factor(s) 
considered must, taken together, indicate 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. 2 
II. ANALYSIS 
The Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 3 The remaining 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. 
In Russia, the Petitioner worked forl I companies and served as ~ I consultant. A 
licensed pilot , he flew recreationally and worked for a time as a helico The Petitioner has 
resided in the United States since 2015. He is a art owner of which o erates a 
flight school in Florida under the name The Petiti ated 
several other apparently aviation-related companies, such as ______________ and 
I , 1 J but the record provides little information about the activities of these 
companies. The Petitioner served I I first as its chief executive officer (CEO) and then as chief 
infonnation officer (CIO). 4 As outlined below, we agree with the Director that the Petitioner has not 
sufficiently demonstrated eligibility for a national interest waiver under the Dhanasar analytical 
framework. 
The Petitioner's proposed endeavor centers around his continued activities runninr; I I In 
response to a request for evidence, the Petitioner states that he "turned I I into an industry leader 
in Florida, and he will continue to expand and growl las the company's CIO." He asserts that 
his "proposed endeavor is executive in nature and has two main managerial objectives . First, he will 
manage and develop the aviation training program ad I Second , he will also oversee 
and manage the development of an innovative training management software application ." 
A. Substantial Merit and National Importance of the Proposed Endeavor 
For the reasons discussed below , we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 5 
The Petitioner asserts that he reversed! Is decline and turned it into a growing, profitable 
company, but the record does not show that the company's growth has had, or will have, an economic 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these thfee oraugs 
3 The Petitioner holds master's degrees in computer science from the!, !university , and in management from 
I !University of Civil Aviation. ....._ ____ _. 
4 The Petitioner states that he "joined! !in April 2015 as the company 's Chief Executive Officer." On Form G-325A, 
Biographic Information , the Petitioner states that he was "Unemployed " from May 2015 to March 2017, and became CEO 
orl lin March 2017. USCIS records do not show that the Petitioner was authorized to work in the United States 
before 2017.I I filed a nonimmigrant petition on the Petitioner 's behalf in October 2015, seeking to classify him as 
an L-1 intracompany transferee ; that petition was not approved until March 2017. I I subsequently filed a 
nonimmigrant petition to classify the Beneficiary as an H-1B nonimmigrant. 
5 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
impact that rises to the level of national importance. The Petitioner states that I I has added jobs 
under his leadership, but the record does not show that the company has created a significant number 
ofjobs. I ts 2016 tax return shows that the company paid $50,629 in salaries. Tax and payroll 
documents from 2017 show significant personnel turnover, with no more than six employees at any 
given time, and only three employees reported as receiving salaries in early December. A quarterly 
payroll report shows five employees during the first quarter of 2018, only three of whom earned 
amounts consistent with continuous, full-time employment. The record shows that the company relies 
on more contractors than employees, with few of them receiving payments commensurate with year­
round, full-time work. Later submissions show three employees in 2019 and 2020, with contractors 
making up the bulk ofl ts payroll. 
On appeal, the Petitioner contends that he has significantly grownl I adding 14 employees 
(mostly flight instructors) and 8 aircraft, and attracted "more than $1,000,000" in foreign capital. 
Setting aside the question of how many of these individuals are year-round employees rather than 
intermittent contractors, we note that, under section 203(b)(5) of the Act, an investment of $1,000,000 
that creates 10 new jobs can qualify a foreign national for a fifth-preference immigrant classification. 
A comparable level of investment and job creation does not presumptively qualify a foreign national 
for benefits under a substantially higher-preference classification, along with an exemption from the 
job offer requirement that, by law, normally attaches to that classification. 
A regional sales director for states that the company has certified! I as al.___ _ _. 
Training Center, and the Petitioner as a.__ ______ ~Instructor Pilot. Whatever the aggregate 
impact of training centers nationwide, the Petitioner has not shown thatl ~'s individual 
participation in~-~ s program has national importance. 
On appeal, the Petitioner states: "Consider thatl I is able to provide training in Airplanes and 
Helicopters, you can be sure that this company is completely unique and no one has the same level of 
service and set of available programs." The Petitioner cites no evidence to support what appears to be 
a claim that no other U.S. flight school offers training for both airplanes and helicopters. The 
Petitioner's vague and uncorroborated claims about the uniqueness of his own company have no 
evidentiary weight in this proceeding. 
Some of the Petitioner's specific claims in this area concern credentials that his companies did not 
possess until after the filing date, such as certification "to train pilots for I I 
airplanes," and some functions that the Petitioner did not claim or mention prior to the appeal. The 
purpose of an appeal is to establish error in the initial decision. See 8 C.F.R. § 103.3(a)(l)(v). If 
claims and evidence are never put before the Service Center Director, then the Director cannot have 
erred by failing to consider those claims and that evidence. 
The above claim is one example of several ways in which the Petitioner's initial assertions about the 
nature of the proposed endeavor changed in response to the request for evidence, and again on appeal. 
Other modifications to the Petitioner's claims include the assertion that he created "an Air Operator 
.__ ________ __." which began operating in Florida in 2018, and therefore his family of 
companies can train pilots and then hire them, giving them experience to qualify them for later work 
with commercial airlines. The Petitioner provides little evidence about this facet of his businesses 
except to document the existence of companies other tha~ I 
4 
In response to a request for evidence, the Petitioner added an element to his proposed endeavor which 
did not appear in his initial filing. Specifically, the Petitioner states that he will "manage the 
development of an aviation training software application" which "involves the development of 
software unique to the needs of aviation training schools." The Petitioner does not explain how this 
system would result in benefits of national importance. The Petitioner asserts that its systems "will 
giv9 I a competitive advantage for recruiting students," which would not be the case if 
I lmade its software systems available to other flight schools. The Petitioner has not shown 
that it would be in the national interest (as opposed tol ts interest) forl I to have "a 
competitive advantage" over other U.S. flight schools. 
On appeal, the Petitioner states that the COVID-19 pandemic led him to "come up with a system of 
how to create and launchl I . . . which can help pilots during this tough 
period ." The Petitioner submits no evidence about this academy, and little information about it except 
its web address and the assertion that an unidentified "team ... is working on this project now," 
"inviting [ unnamed] professionals from industry to create their I I courses." 
The Petitioner's reliance on a significantly modified claim on appeal does not show that he met all 
eligibility requirements at the time of filing the petition as required by 8 C.F.R. § 103.2(b)(l) . New 
facts cannot establish eligibility as of the filing date. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg') Comm'r 1971). 
The Petitioner submits letters and a news article about a pilot shortage in the airline industry, but he 
also submits a report indicating that "[a]irline hiring is booming," "hiring in numbers not seen since 
the pre-9/11 era." The report indicated that the number of private pilots is declining, while the number 
of airline pilots had been steadily increasing, by thousands per year, since around 2010. The Petitioner 
does not establish thatl I trains enough new pilots to have a nationally significant effect on 
industry staffing trends. 6 
The record does not show that benefits to the regional or national economy resulting from the Petitioner's 
projects would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. 
at 890. Also, 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. 
Here, we find the record does not show that the benefit from the Petitioner's proposed endeavor stands 
to sufficiently extend beyond his companies to impact the industry more broadly at a level 
commensurate with national importance. For all these reasons, the Petitioner 's proposed work does 
not meet the fust prong of the Dhanasar framework. 
Since this issue is dispositive of the Petitioner 's appeal, we decline to reach and hereby reserve the 
appellate arguments regarding the remaining issue, concerning whether , on balance, a waiver of the 
job offer requirement would be beneficial to the United States. See INS v. Bagamasbad, 429 U.S. 24, 
6 We note that, at the time of filing,! !was certified to train private pilots, but its application f~r certjfication to 
train commerci al pilots was still pending. Also, the Petitioner submit s materials showing that many ofl........_ _ __.J's students 
are nonimmigrants , predominantly from Eastern Europe. Training foreign pilots who then return to their countries of 
origin does not alleviate a shortage of U.S. pilots. Rather, it reduces the number of training spots available to prospective 
U.S. pilots. 
5 
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 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that he has not established eligibility for a national interest waiver as a matter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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