dismissed EB-2 NIW Case: Commercial Pilot

U.S. Citizenship 
and Immigration 
Services 
In Re: 23071152 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: Apr. 18, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a commercial pilot, seeks second preference immigrant classification as an individual 
of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification .1 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 the Petitioner had not 
established eligibility as an individual of exceptional ability and 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 l&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. Section 203(b )(2)(B)(i) of the Act. The 
regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "[e]xceptional ability 
in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
sets forth the specific evidentiary requirements for demonstrating 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). However, meeting the minimum 
1 The Petitioner initially claimed eligibility as a member of the professions holding an advanced degree. As part of the 
Director's request for evidence (RFE), the Director informed the Petitioner that he did not provide a detailed evaluation of 
his education to demonstrate eligibility as a member of the professions with an advanced degree. In response, the Petitioner 
did not address this issue or contest the Director 's specific finding . Instead, the Petitioner made claims of eligibility as an 
individual of exceptional ability. Therefore , the Director only considered the Petitioner 's qualification for the underlying 
EB-2 visa classification as an individual of exceptional ability. 
requirements by providing at least three types of initial evidence does not, in itself, establish that the 
individual in fact meets the requirements for exceptional ability. See 6 USCIS Policy Manual 
F.5(B)(2), https://www.uscis.gov/policymanual. In the second part of the analysis, officers should 
evaluate the evidence together when considering the petition in its entirety for the final merits 
determination. Id. The officer must determine whether or not the petitioner, by a preponderance of 
the evidence, has demonstrated a degree of expertise significantly above that ordinarily encountered 
in the sciences, arts, or business. Id. 
Next, a petitioner 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, 26 
I&N Dec. 884, 889 (AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner shows: 
• 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. 
II. ANALYSIS 
As indicated above, the Petitioner must first meet at least three of the regulatory criteria for 
classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying 
the petition, the Director determined that the Petitioner fulfilled only two of the criteria. On appeal, 
the Petitioner maintains that he meets an additional two. After reviewing the evidence, we conclude 
that the record does not support of finding of his eligibility for at least three. 
Evidence in the form ofletter(s)from current or former employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Director stated: 
The record contains ex erience letters from (since April 14, 
2016 , (from February 18, 2004 - March 31, 2014), and 
from July 1999 - April 2001 ), which reflects that the petitioner is/was 
employed with each as indicated. However, as noted in USCIS' [RFE], when 
submitting experience letters, they must contain a description of the petitioner's duties, 
and must state whether the positions performed by him were full time. The purpose of 
an RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought was established at the petition's filing date. See 8 C.F.R. §§ 103.2(b)(8),(12). 
Since the experience letters lack this specific information, then USCIS cannot 
determine if the petitioner has the requisite ten years of full-time experience. It is the 
petitioner's burden to demonstrate that he meets every element of a particular criterion. 
2 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 
The appeal brief claims: 
[T]he Petitioner submitted a letter from I for his employment from 
February 18, 2004 to March 31, 2014. The airline testified truthfully of the petitioner's 
logged flight hours, which is amount to 5874.21 hours. It also states the specific 
aircrafts that the Petitioner has flown during the employment. The information 
provided in the employment letters is detailed and specific. 
The regulation at 8 e.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence 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."3 Further, the regulation at 8 C.F.R. § 204.S(g)(l) 
provides that evidence relating to qualifying experience or training shall be in the form of letters from 
current or former employers or trainers and shall include a specific description of the duties performed 
by the individual or of the training received. However, none of the employment letters indicate that 
the Petitioner has at least ten years of"foll-time experience." Although the letters provide employment 
dates, job positions, and flight hours, they do not specify whether the Petitioner has been employed in 
a foll-time capacity or has at least ten years of foll-time experience, as well as "a specific description 
of the duties performed." 
Accordingly, the Petitioner did not establish that he meets this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director stated: 
The petitioner submitted a one-page enlarged printout which states that he has been a 
valued member of AOPA since 2018. However, since the only evidence in the record 
is the one-page enlarged printout, then users questions the existence of the association 
and the petitioner's membership in it. The lack of information in the record about 
AOP A also makes it impossible for users to convert the acronym into its spelled-out 
form and determine if it is a professional association. It is the petitioner's burden to 
demonstrate that he meets every element of a particular criterion. 
The appeal brief contends: 
[T]he Petitioner submitted a membership of AOPA organization since 2018. In the 
petitioner's initial petition, the Petitioner has submitted 1) his membership card with 
member service contact information; and 2) a screenshot of his account page on AOP A 
website which contains a website address. The Service denied the Petitioner's 
membership with the wrongful reasons that 1) the only evidence is the one-page 
enlarged printout that leads to Service questions the existence of association; 2) the 
Service cannot convert the acronym into its spelled-out form and determined if it is a 
professional association. 
3 See also 6 USC1S Policy Manual, supra, at F.5(B)(2). 
3 
The Petitioner should not be bearing the consequences of the Service's failure to 
recognize the evidence in the initial petition and the failure to perform due diligence on 
researching the organization. In fact, the AOPA Foundation is the philanthropic arm 
of the Aircraft owners and Pilot association. 
Even though the Petitioner did not claim eligibility as an individual of exceptional ability, including 
the membership criterion, at initial filing, a review of the record reflects that the Petitioner did provide 
a copy of his AOP A membership card and a screenshot from aopa.org reflecting his membership. 
However, we agree with the Director that the burden remains with the Petitioner to establish eligibility 
for the benefit. See section 291 of the Act; Chawathe, 25 I&N Dec. at 375-76. Although the material 
contains the association's website, the Director does not bear the burden to conduct an internet search 
of AOP A's website to research the organization and establish eligibility for the Petitioner. 4 Rather, 
that burden rests with the Petitioner to provide sufficient evidence to support his claims. 
Notwithstanding, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership 
in professional associations." 5 Here, the Petitioner did not establish that his membership with AOPA 
is tantamount to his membership in a "professional" association. The regulation at 8 C.F.R. 
§ 204.5(k)(2) contains the following relevant definition: "[p]rofession means one of the occupations 
listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the 
occupation." 6 Although the Petitioner submits information about the AOPA Foundation on appeal, 
the material does not show the status of AOP A as a professional association. In this case, the Petitioner 
did not demonstrate how an aircraft owner and pilot association qualifies as a professional association. 
The record, for instance, does not reflect that AOP A has a membership body comprised of individuals 
who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization 
otherwise constitutes a professional association consistent with this regulatory criterion. 
For these reasons, the Petitioner did not demonstrate that he satisfies this criterion. 
III. CONCLUSION 
The Petitioner did not establish eligibility for any additional criteria. Accordingly, we need not provide 
a final merits determination to evaluate whether the Petitioner has achieved the required level of 
expertise required for exceptional ability classification. 7 In addition, we need not reach a decision on 
whether, as a matter of discretion, he is eligible for or otherwise merits a national interest waiver under 
4 The Petitioner references 1 USCIS Policy Manual, supra, E.6(F)(2). However, this policy guidance relates to 
"Considerations Before Issuing Requests for Evidence or Notice oflntent to Deny [NOTO]." Here, the Petitioner claimed 
eligibility for this criterion in response to the RFE, and the Director made his finding in his denial of the petition. Moreover, 
the guidance specifically states that "[o ]fficers have the discretion to validate assertions or conoborate evidence and 
information" before issuing an RFE or NOTO ( emphasis added). Thus, "an officer may assess, before issuing an RFE or a 
NOTO, whether the information or evidence needed is available in USCTS records or systems" (emphasis added). Id. 
5 See also 6 USCIS Policy Manual, supra, at F.5(B)(2). 
6 Section 101(a)(32) of the Act defines "the term 'profession' shall include but not be limited to architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
7 See also 6 USCIS Policy Manual, supra, at F.5(B)(2). 
4 
the Dhanasar analytical framework. Accordingly, we reserve these issues. 8 The appeal will be 
dismissed for the above stated reasons, with each considered as an independent and alternate basis for 
the decision. 
ORDER: The appeal is dismissed. 
8 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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
5