dismissed EB-2 NIW Case: Commercial Aviation

U.S. Citizenship 
and Immigration 
Services 
In Re: 23042194 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 15, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a commercial pilot, seeks classification as 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. 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 record did not 
establish that the Petitioner qualifies for the classification sought or for a national interest waiver. 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 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
To qualify for a national interest waiver , a petitioner must first show eligibility 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). Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. We 
will then conduct a final merits determination to decide whether the evidence in its totality shows that 
they are recognized as having a degree of expertise significantly above that ordinarily encountered in 
the field. 
Once a petitioner demonstrates EB-2 eligibility, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 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, 1 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. 
To establish eligibility as an individual of exceptional ability, a petitioner must submit documentation 
that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). If an 
individual meets at least three of the regulatory criteria, we then consider the totality of the material 
provided in a final merits determination and assess whether the record shows a degree of expe1iise 
significantly above that ordinarily encountered in the individual's field. See Kazarian v. USC JS, 596 
F.3d 1115 (9th Cir. 2010) (discussing a two-partreviewwhere the documentation is first counted and 
then, if fulfilling the required number of criteria, considered in the context of a final merits 
determination). See also, generally, 6 USCIS Policy Manual F.5 (B)(2), https://www.uscis.gov/ 
policy-manual. 
The Petitioner has worked as a pilot since 1998, for employers including commercial airlines and 
exporters, mostly in Brazil. He also worked as an instructor and demonstration pilot for an aircraft 
construction company. He entered the United States in September 2018 as the F-2 derivative spouse of 
anF-1 nonimmigrantstudent, and filed the immigrant petition in January 2019. After he filed the petition, 
the Petitioner has continued to work as a pilot, first for a charter company and then for an investment 
holding company, and he has started his own company offering "pilot services" and "aeronautical 
consult[ing] for new pilots." 
The Director determined that the Petitioner had met the requirements of three of the regulatory criteria 
at 8 C.F.R. § 204.5 (k)(3 )(ii), pertaining, respectively, to (I) a degree or certificate from an institution 
of learning; (2) experience in the occupation; and (3) licensure or certification. In the final merits 
determination, the Director concluded that the Petitioner's evidence, considered as a whole, does not 
establish a degree of expertise significantly above that ordinarily encountered in the Petitioner's field. 
We agree with the Director's conclusion. 
Two of the criteria that the Director granted relate to the Petitioner's completion of flight school and 
possession of a pilot's license. The Petitioner did not establish that these achievements represent a 
level of expertise consistent with exceptional ability. Rather, they appear to be basic credentials, 
necessary for employment in the field. The Petitioner did not provide any evidence that one could 
become a commercial pilot without training and licensure, in Brazil or any other jurisdiction. 
The Director stated that the remaining granted criterion, length of experience, does not inherently 
establish exceptional ability. The Petitioner does not address this conclusion on appeal. 
1 Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in na ture). 
2 
Other evidence that the Petitioner had submitted in support of his claim of exceptional ability included 
letters from employers, which the Petitioner characterized as recognition for achievements and 
significant contributions to the field. The letters included anecdotes about the Petitioner's job 
performance, indicating that he had helped his employers in ways such as persuading customers to 
purchase airplanes and flying a head of state across international boundaries under volatile political 
circumstances. We agree with the Director that, while these events were beneficial to the Petitioner's 
employers and customers, the Petitioner did not establish their significance to the field of commercial 
aviation. 
The Petitioner provided Brazilian income tax returns, and statistics about Brazilian pilots' salaries. 
This information is incomplete. The statistics do not establish whether the salaries are weekly, 
monthly, orrelate to some other interval, and the annual figures on the tax returns do not show whether 
the Petitioner's rate of pay was based on ability, seniority, or some other factor. The same employer 
paid the Beneficiary about 20% less in 2016 than in 2015. Evidence about the Petitioner's salary in 
the United States originated after the petition's filing date, and therefore cannot help to establish 
eligibility at the time of filing as required by 8 C.F.R. § 103 .2(b )(1 ). 
The Petitioner also submitted copies of flight logs and reports from Brazil, without explaining how 
they establish exceptional ability. 
On appeal, the Petitioner states that he is one of "a few top Airline Pilots" who are licensed "to operate 
different types of airplanes." The Petitioner cites no statistics or other evidence to demonstrate that 
he holds a wider range of licenses than what is ordinarily encountered in his field. 
The Petitioner has established that he is a qualified and experienced pilot, but he has not submitted 
enough evidence to demonstrate exceptional ability as the regulations define that term. The 
Petitioner's evidence does not provide a sufficient basis for comparison to demonstrate that he 
possesses a degree of expertise significantly above that ordinarily encountered in his field. 
The Petitioner has not demonstrated eligibility for classification as an individual of exceptional 
ability. Because this issue determines the outcome of the Petitioner's appeal, we will dismiss the 
appeal and reserve the appellate arguments regarding the national interest waiver. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (holding that "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). 
ORDER: The appeal is dismissed. 
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