dismissed EB-2 NIW Case: Helicopter Pilot

U.S. Citizenship 
and Immigration 
Services 
In Re: 24844910 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 24, 2023 
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 an individual of exceptional ability, 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 qualifies for the underlying visa classification or merits a discretionary 
waiver of the job offer requirement "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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010) . We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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. 
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). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, 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. 
1 If these types of evidence do not readily apply to the individual's occupation , a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov /policy-manual/volume-6-
part-f-chapter-5. 
Once a petitioner demonstrates eligibility for the underlying 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. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, 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. 
On appeal, the Petitioner generally repeats previous assertions. For example, he references his years 
of experience, "advanced knowledge," satisfaction of three of criteria, and "excellent relationships" to 
establish that he qualifies as an individual of exceptional ability. 
The Director determined that, although the Petitioner satisfied three of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), and (C), he had not established that the evidence in its totality shows that he 
is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. For the reasons discussed below, we must withdraw the Director's conclusion regarding the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
The regulation requires "[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 of learning relating 
to the area of exceptional ability." Here, the Petitioner relies on two certificates from Aviation 
School in Brazil which state that he "[ s ]uccessfully completed the Commercial [ and Private] 
Helicopter Pilot Course[ s ]" with "240 course hours" each. It is not readily apparent that these 
certificates meet the plain language of the regulation. Without additional evidence, the Petitioner has not 
sufficiently established that I I qualifies as a "college, university, school or other institution of 
learning" or that the certificates are "an official academic record." 4 
Further, even if we did not withdraw this criterion, we agree with the Director's conclusion and 
reasoning in the final merits determination, and, therefore, we adopt and affirm it. See Matter of 
Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 
1997) (noting that the practice of adopting and affirming the decision below has been "universally 
accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight U.S. Courts of Appeals in holding that appellate adjudicators may adopt and 
affirm the decision below as long as they give "individualized consideration" to the case). 
Because the Applicant has not demonstrated eligibility for the underlying classification, we need not 
consider whether he merits a discretionary waiver of the job offer requirement "in the national interest" 
and, therefore, reserve the issue. 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 
3 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 discretionmy in nature). 
4 For example, we are unable to determine whether the "240 course hours" were limited to flight time alone. 
2 
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 has not otherwise met their burden of proof). The 
petition will remain denied. 
ORDER: The appeal is dismissed. 
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