dismissed EB-2 NIW Case: Helicopter Pilot

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 5, 2024 In Re: 30967677 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a helicopter pilot, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree, as well as a national interest 
waiver of the job offer requirement attached to this classification. See 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 that the record did not 
establish that the Petitioner is an individual of exceptional ability, that the proposed endeavor is 
nationally important, or that it would be beneficial to waive the requirements of a job offer. 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 
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). When assessing exceptional ability, USCIS uses 
a two-step analysis. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy­
manual. First, a petitioner must submit at least three of the following types of evidence: 
• An official academic record showing the noncitizen' s possession of a degree, 
diploma, certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability; 
• Letters from current or former employers showing that the noncitizen has at least 
10 years of full-time experience in the proposed occupation; 
• A license to practice the profession or certification for the profession or occupation; 
• Evidence of the noncitizen's receipt of a salary or other remuneration 
demonstrating exceptional ability; 
• Proof of membership in professional associations; or 
• 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). If these types of evidence do not "readily apply" to a beneficiary's 
occupation, a petitioner may establish eligibility by submitting "comparable evidence." 8 C.F.R. § 
204.5(k)(3)(iii). 
Meeting at least three criteria does not, in and of itself: establish eligibility for this classification. 1 If 
a petitioner does so, we will then conduct a final merits determination. Wherein, USCIS evaluates all 
evidence, considering the petition in its entirety. See generally 6 USCIS Policy Manual, supra, at 
F.5(8)(2). The Agency must determine whether a petitioner, by a preponderance of evidence, has 
demonstrated a beneficiary's possession of a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. Id. 
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." 
Section 203(b )(2)(B)(i) of the Act. 
II. ANALYSIS 
A. Exceptional Ability 
The first issue to be addressed is whether the Petitioner established his eligibility for EB-2 
classification. The Petitioner claims eligibility as an individual of exceptional ability. 2 
As a preliminary matter, the Petitioner asserts on appeal that in denying the petition, the Director 
"imposed novel substantive and evidentiary requirements." An appeal must specifically identify any 
erroneous conclusion of law or statement of fact in the unfavorable decision. See 8 C.F.R. § 
103.3(a)(l)(v). Although the Petitioner asserts that he has provided evidence sufficient to demonstrate 
his eligibility for a national interest waiver, he does not specify, as required, how the Director erred or 
what factors in the decision were erroneous. 
The Director determined that the Petitioner met three of the six criteria within the exceptional ability 
determination. However, in a final merits analysis, the Director determined that the evidence did not 
establish the Petitioner's eligibility as an individual of exceptional ability. 
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, supra, at F.5(8)(2). 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 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally 6 USCIS Policy Manual, supra. at F.5(B)(2). 
2 The Petitioner has not asserted at any time in these proceedings that he is a member of the professions holding an advanced 
degree. 
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demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. Id. For the reasons discussed below, we conclude that the Petitioner does not qualify as 
an individual of exceptional ability. 3 
On appeal, the Petitioner argues that as he met three of the six criteria, he established that he is an 
individual of exceptional ability. The Petitioner did not provide further argument on how he qualifies 
as an individual of exceptional ability or address how or if the Director erred in their final merits 
determination. As outlined above, more is required to establish a degree of expertise significantly 
above that ordinarily encountered in the profession. Meeting the criteria requirement merely advances 
a petitioner along to a final merits determination. 
Upon de novo review of the record, we agree with the Director that the Petitioner established three of 
the six criteria. Nonetheless, considering all the evidence, the Petitioner has not established by a 
preponderance of the evidence that he is an individual of exceptional ability. 
The evidence presented demonstrates that the Petitioner is a member of his profession and has met the 
general qualifications for individuals working in his occupation. Yet, considering the totality of the 
record, he has not demonstrated that he has skills significantly above that ordinarily encountered in 
his field. For example, his training certificates and licensure are common for those working in the 
industry as minimum qualifications to enter the field and maintain competitive skills. Similarly, the 
Petitioner's resume and employment confirmation letters affirm his employment history. His work 
history indicates that he has worked as a helicopter pilot and flight instrnctor with several different 
companies over the course of his career. 
Furthermore, the letters ofrecommendations provided only denote the Petitioner's work in the context 
of his association with each letter's writer. Additionally, several of them make generalized statements 
about the Petitioner's skills but do not specify how the Petitioner has a significant degree of expertise 
above what is encountered in the wider community of pilots. For example, although one friend stated 
that the Petitioner was "lauded for his dedication and commitment to safety," they do not explain how 
the Petitioner's safety record set him apart from others in the field. Another friend wrote that the 
Petitioner was making a "significant impact" in the field as he was "lauded by various peers and 
companies," but did not explain how he was making this claimed impact or in what way or why he 
was being lauded by companies and peers. 
The Petitioner also submitted one advisory opinion letter from _____ that discusses the 
Petitioner's work history. As a matter of discretion, we may use opinion statements submitted by a 
petitioner as advisory. Matter ofCaron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
we will reject an opinion or give it less weight if it is not in accord with other information in the record 
or if it is in any way questionable. Id. We are ultimately responsible for making the final 
determination regarding an individual's eligibility for the benefit sought; the submission of expert 
opinion letters is not presumptive evidence of eligibility. Id. Here, the advisory opinion is of little 
probative value as Mr. I lmainly recites the Petitioner's education and work history and then 
makes sweeping conclusory statements regarding the Petitioner's expertise. He provides little 
objective basis for his opinions, nor does he explain how the Petitioner's personal work history makes 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
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him a "respected leader among his contemporaries." Nothing in the letter states how his work 
experience translates into someone who has a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 
In summation, none of the evidence provided shows the impact of the Petitioner's work in the field, 
such as examples of the implementation of his strategies, methodologies, or innovations, or how the 
Petitioner's work is significantly above others helicopter pilots. In evaluating the evidence, eligibility 
is to be determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 
I&N Dec. at 376. 
Therefore, we agree with the Director that considering all the evidence, the Petitioner has not 
established by a preponderance of the evidence that he is an individual of exceptional ability. As the 
Petitioner has not shown that he is as an individual of exceptional ability and has not asserted that he 
is an advanced degree professional, the documentation in the record does not establish eligibility for 
the underlying EB-2 classification. 
B. National Interest Waiver 
As the Petitioner has not established eligibility for the EB-2, he is ineligible for a national interest 
waiver. Because the identified reasons for dismissal are dis positive of the Petitioner's appeal, we 
decline to reach and hereby reserve remaining arguments concerning eligibility under the Dhanasar 
framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to 
make "purely advisory findings" on issues that are unnecessary to the ultimate decision); 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). 
III. CONCLUSION 
The Petitioner has not established that he qualifies as an individual of exceptional ability, or that he is 
otherwise eligible for the underlying EB-2 immigrant visa classification. The appeal will be dismissed 
for the above stated reasons. 
ORDER: The appeal is dismissed. 
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