dismissed EB-2 NIW Case: Commercial Airline Pilot

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 14, 2023 In Re: 28088430 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a commercial airline pilot, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability. 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, while the Petitioner's 
proposed endeavor has substantial merit, the record did not establish that the Petitioner qualifies for a 
national interest waiver as an individual of exceptional ability. 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 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. 
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. 
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 aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 
26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver 
petitions. Dhanasar states that 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. 4 
As to the Petitioner's qualifications under the EB-2 classification, the Director determined that the 
Petitioner satisfied eligibility criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (C), and (E). The Director 
reviewed evidence submitted relating to eligibility criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (F); the 
Director described why that evidence did not establish that the Petitioner has at least ten years of full­
time experience in the occupation for which he is being sought, as well as why the evidence did not 
show that he has been recognized for achievements and significant contributions to the industry or 
field by peers, government entities, or professional or business organizations. The Director explained 
that letters submitted did not meet regulatory requirements. 5 The letters from his previous employers 
did not specify whether the Petitioner worked full-time or part-time during claimed periods of 
employment, nor did they include descriptions of his job duties. The Director also pointed out 
inconsistencies in the record concerning the Petitioner's claimed dates of employment that were not 
resolved in response to a request for evidence. 6 The Director further explained that letters from the 
Petitioner's colleagues, while laudatory of his professional knowledge and work ethic, did not provide 
insight as to how the Petitioner's work accomplishments constitute achievements or contributions to 
the industry or field. The Director also noted that the letters of support were not corroborated by 
independent, objective evidence to substantiate their content or otherwise demonstrate that the 
Petitioner has been recognized for any significant contributions to the industry or field by peers, 
government entities, or professional or business or organizations. The Director provided a detailed 
final merits analysis of the evidence submitted-including the Petitioner's licenses, certifications, and 
memberships-and determined that the Petitioner does not have a degree of expertise significantly 
above that ordinarily encountered in his profession. The Director concluded that the Petitioner does 
not qualify for the EB-2 classification as an individual of exceptional ability. 
The Director also considered the Petitioner's qualifications under the three prongs of the Dhanasar 
framework. The Director explained how specific evidence within the record-such as the letters of 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
5 See 8 C.F.R. § 204.5(g)(l ). 
6 See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) (stating that a petitioner must resolve inconsistencies of record 
with independent objective evidence pointing to where the truth lies, and that doubt cast on any aspect of a petitioner's 
evidence may lead to a reevaluation of the reliability and sufficiency of the remaining evidence). 
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support, the Petitioner's professional plan, and industry reports-did not establish that the Petitioner's 
proposed endeavor to continue his work as a commercial pilot has national importance; that he is well 
positioned to advance the endeavor; or that it would be beneficial to the United States to waive the 
requirements of a job offer and, thus, of a labor certification. 
On appeal, the Petitioner submits a brief in which he asserts that USCIS "erroneously denied" the 
petition and "imposed novel substantive and evidentiary requirements beyond those set forth in the 
regulations." The Petitioner, however, does not identify any unusual requirements imposed, nor does 
the Petitioner specify how the Director erred or what factors in the decision were erroneous. 7 The 
Petitioner also contends, without farther explanation, that the Director applied a stricter standard of 
proof than that of preponderance of the evidence 8 and "did not give due regard" to the evidence 
submitted. The Petitioner's brief emphasizes his qualifications as a pilot and the importance of 
addressing pilot shortages, 9 as well as reiterates economic impact claims concerning his proposed 
endeavor that are not substantiated by probative evidence within the record. The Petitioner must 
support his assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. at 376. On appeal, the Petitioner has not provided arguments or evidence which overcome 
the Director's determination. 
We adopt and affirm the Director's decision. 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 accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). 
ORDER: The appeal is dismissed. 
7 An appeal must specifically identity any erroneous conclusion of law or statement of fact in the unfavorable decision. 
See 8 C.F.R. § 103.3(a)(l)(v). 
8 See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) ( discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
9 Although not specifically addressed in the Director's decision, we note that the Petitioner has not provided an explanation 
of how his employment as a single pilot would impact pilot shortages in the airline industry. 
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