dismissed EB-2 NIW Case: Commercial Aviation

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 25733302 Date : MAY 8, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a commercial aircraft 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, 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 record satisfied the 
plain language of at least three of the six criteria for an individual of exceptional ability but that a final 
merits determination of the evidence does not support the conclusion that the Petitioner has 
exceptional ability. The Director further concluded that the Petitioner has 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 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. 
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. 
For the purpose of determining eligibility under section 203(b)(2)(A) of the Act, "exceptional ability" 
is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at least three 
of which must be satisfied, for an individual to establish exceptional ability: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing 
that the alien has at least ten years of foll-time experience in the occupation for 
which he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession 
or occupation; 
(D) Evidence that the alien has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
8 C.F.R. § 204.5(k)(3)(ii). 
In determining whether an individual has exceptional ability under section 203(b )(2)(A) of the Act, 
the possession of a degree, diploma, certificate, or similar award from a college, university, school or 
other institution of learning or a license to practice or certification for a particular profession or 
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 
203(b)(2)(C) of the Act. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where 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 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
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II. ANALYSIS 
The 
Director found that the record satisfied the plain language of at least three of the six criteria or an 
individual of exceptional ability, specifically the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(C), and (E). 
However, after a final merits determination of the record, the Director concluded that the Petitioner 
has not established that he is an individual of exceptional ability because the record does not contain 
"sufficient documentary evidence to establish that he possesses a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." The Director further found that 
the record does not satisfy any of the criteria set forth in the precedent decision Matter ofDhanasar, 
26 I&N Dec. 884 (AAO 2016). For the reasons discussed below, the Petitioner has not established 
that a waiver of the requirement of a job offer is warranted. 
The Director acknowledged that the record contains "certificates documenting [the Petitioner's] 
completion of various aviation-related courses as of the priority date[;] over ten (10) years of foll-time 
experience in his field [of commercial aviation; and] a professional license authorizing him to work 
as a pilot." However, the Director observed: 
the act of pursuing professional development or continuing educational courses are 
inherent to the [P]etitioner's occupation[;] possession of these certificates does not 
automatically render him an individual of exceptional ability because these types of 
qualifications are routinely conferred to numerous individuals in a variety fields[;] 
simply fulfilling one's job duties for more than ten years does not automatically render 
one an individual of exceptional ability[; and] the possession of a license is inherent to 
the [P]etitioner's occupation [and he] has not established that the issuance of this 
document identifies a mark of distinction, setting [him] apart from what is ordinarily 
encountered in his field. 
Considering the totality of the record, the Director concluded that the evidence does not establish the 
Petitioner possesses a degree of expertise as a commercial aircraft pilot significantly above that 
ordinarily encountered in his field; therefore, he does not qualify for second-preference classification 
as an individual of exceptional ability. See section 203(b )(2)(A) of the Act. 
On the Form I-290B, Notice of Appeal or Motion, the Petitioner indicates, "I will submit my brief 
and/or additional evidence to the AAO within 30 calendar days of filing the appeal." However, to 
date, we have not received a brief or additional evidence from the Petitioner. Instead, in the basis for 
appeal statement in the appeal submission, the Petitioner asserts that his proposed endeavor has 
national importance, he has demonstrated success in similar efforts, and that on balance, it would be 
beneficial to the U.S. to waive the requirements of a job offer, referencing the three prongs of a 
Dhanasar analysis. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. The 
Petitioner does not address on appeal the Director's conclusion that the record does not establish he 
possesses a degree of expertise as a commercial aircraft pilot significantly above that ordinarily 
encountered in his field. We have reviewed the record in its entirety; however, it does not support the 
conclusion that the Petitioner possesses a degree of expertise significantly above that ordinarily 
encountered in his field. Therefore, the record does not establish that the Petitioner qualifies for 
second-preference classification as an individual of exceptional ability. See section 203(b)(2)(A) of 
the Act; see also 8 C.F.R. § 204.5(k)(2); Kazarian, 596 F.3d 1115. 
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In summation, the Petitioner has not established he possesses a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. Therefore, the record does not establish 
that the Petitioner qualifies for second-preference classification as an individual of exceptional ability. 
See section 203(b )(2)(A) of the Act. We reserve our opinion regarding whether the Petitioner satisfies 
any of the criteria set forth in Matter ofDhanasar, 26 I&N Dec. 884. 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 ofL-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 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability; therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought. 
ORDER: The appeal is dismissed. 
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