dismissed EB-2 NIW Case: Commercial Pilot

U.S. Citizenship 
and Immigration 
Services 
In Re: 23052630 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 24, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, 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. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b)(2). 
The Acting Director of the Texas Service Center denied the petition, concluding that the Petitioner had 
not established his 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. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Exceptional 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 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. 
Furthermore, 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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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. 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
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, USCIS 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 
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. 3 
II. ANALYSIS 
Because he has not indicated or established that he qualifies as a member of the professions holding 
an advanced degree, the Petitioner must 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 although the Petitioner fulfilled four of the regulatory criteria, he did not 
show his degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. After reviewing the evidence in the record, we will not disturb the Director's decision 
relating to the license criterion under 8 C.F.R. § 204.5(k)(3)(ii)(C). However, for the reasons discussed 
further below, we will withdraw the Director's decision relating to the official academic criterion 
under 8 C.F.R. § 204.5(k)(3)(ii)(A), the ten years of foll-time experience criterion under 8 C.F.R. 
§ 204.5(k)(3)(ii)(B), and the membership criterion under 8 C.F.R. § 204.5(k)(3)(ii)(E). 4 
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. 8 C.F.R. § 204.5(k)(3)(ii)(A). 
As indicated above, although the Director concluded that the Petitioner met this criterion, we will 
withdraw that decision. The record reflects that the Petitioner submitted a "CERTIFICATE" from 
his employer, incticating that the Petitioner "has participated" in three courses. In adctition, the 
Petitioner provided a "STUDIES CERTIFICATE" from the I 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Director also determined that the Petitioner did not meet the salary criterion under 8 C.F.R. § 204.5(k)(3)(ii)(D) and 
recognition for achievements and significant contributions criterion under 8 C.F.R. § 204.5(k)(3)(ii)(F). The Petitioner 
does not contest the Director's determinations for these criteria on appeal. Issues or claims not addressed on appeal are 
deemed to be waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief 
are deemed waived). 
3 
reflecting that he "has been a student of the _____ course of 'COMMERCIAL PILOT"' and 
completed various subjects. 
The issue for this criterion is whether an individual offered "[aa ]n official academic record showing that 
the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other 
institution oflearning relating to the area of exceptional ability" as required by the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). 5 The Petitioner, however, did not establish that the presented certificates represent 
"official academic record[ s ]" from the entities consistent with this regulatory criterion, nor do the 
certificates indicate that they constitute official academic records. Moreover, while the evidence shows 
that the Petitioner participated and completed courses, the documentation does not demonstrate that he 
received "a degree, diploma, certificate, or similar award." In addition, the Petitioner did not 
demonstrate that lorl I qualify as "a college, university, school, or other institution of 
learning" pursuant to this regulatory criterion; he did not support the record with background 
information or other evidence reflecting status as a college, university, school, or other institution of 
learning. 
For these reasons, the Petitioner did not establish that he satisfies this criterion; and therefore, we 
withdraw the Director's determination for this criterion. 
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). 
We will withdraw this criterion for the following reason. The Petitioner submitted a letter, entitled 
"WORK CERTIFICATE," froml I stating that the Petitioner "serves in our company since 
August 10th, 2004, as a COMMANDER A319." In addition, the Petitioner offered documentation 
regarding his flight hours in 2018. The regulation at 8 C.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 
full-time experience in the occupation for which he or she is being sought." 6 Further, the regulation at 
8 C.F.R. § 204.5(g)(l) also 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. In this case, the work 
certificate letter does not indicate that the Petitioner has at least ten years of "full-time experience." 
Although the letter states that he has been employed since 2004, the letter does not specify whether 
the Petitioner has been employed in a full-time capacity or has at least ten years of full-time experience 
withl I 
Because the employer letter does not show that the Petitioner has at least ten years of full-time 
experience, we withdraw the decision of the Director for this criterion. 
5 See also 6 USC1S Policy Manual, supra, at F.5(B)(2). 
6 See also 6 USC1S Policy Manual, supra, at F.5(B)(2). 
4 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined that the Petitioner met this criterion based on his membership with the Pilot 
Union ofl I Because the record does not support the regulatory requirements, we will 
withdraw the Director's decision for this criterion. 
The record reflects that the Petitioner submitted a letter from of the Pilots Union of who stated: ___________ 
The Pilot Union of I has as its fundamental mission to defend labor rights, 
to maintain the security and efficiency of I Pilots at the highest level that 
they are affiliated and seek effective solutions to the controversies that arise with the 
Company and the aeronautical authorities in order to improve the quality of life in a 
favorable work environment based on the values of justice, equity and fair treatment. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional 
associations." 7 Here, the Petitioner did not establish that his membership with the Pilot Union ofc=] 
is tais 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." 8 In this case, the Petitioner did not show how a union-affiliated association qualifies as 
a professional association. The documentation does not reflect that the Pilot Union ofl I 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. 
Accordingly, the Petitioner did not demonstrate that he fulfills the regulatory requirements, and we 
withdraw the Director's determination for this criterion. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner established eligibility for only one criterion, in which he 
must meet at least three. As such, 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. 
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 the Dhanasar analytical framework. Accordingly, 
7 See also 6 USC1S Policy Manual, supra, at F.5(B)(2). 
8 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." 
5 
we reserve these issues. 9 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. 
9 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 l&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
6