dismissed EB-2 NIW Case: Pilot

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 26, 2024 In Re: 32460311 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a 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 Petitioner did not 
establish eligibility for the requested EB-2 immigrant classification as an individual of exceptional 
ability. The matter is now before us on appeal pursuant to 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. 1 Section 
203(b)(2)(A) 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) . 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 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 the requisite degree of expertise and will 
1 As the Petitioner does not claim he is an advanced degree professional, we will not address this issue further. 
2 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). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they 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. 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, 4 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. 
Id. 
II. ANALYSIS 
A. Exceptional Ability 
The Director determined the Petitioner met three of the six claimed categories of evidence at 
8 C.F.R. § 204.5(k)(3)(ii), including: official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A), ten 
years of full-time experience at 8 C.F.R. § 204.5(k)(3)(ii)(B), and a license to practice the profession 
at 8 C.F.R. § 204.5(k)(3)(ii)(C). Additionally, although the Director did not address the remaining 
three evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii) in their decision, they previously determined in 
the request for evidence (RFE) that the Petitioner met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) 
relating to membership in professional associations. After evaluating the totality of the evidence in 
the context of the final merits determination, the Director then concluded that the Petitioner did not 
establish that he had a degree of expertise significantly above that ordinarily encountered in his field 
and therefore was not an individual of exceptional ability. 
On appeal, the Petitioner asserts that the decision runs counter to the evidence in the record and 
generally claims the Director erred in their consideration of the evidence. As an example of this, he 
points to the Director's determination that, because he met the first three of the six evidentiary criteria, 
an analysis as to whether he satisfied the remaining criteria would serve no meaningful purpose. This, 
according to the Petitioner, shows the Director ignored the evidence submitted under the three 
remaining evidentiary categories. We disagree. While conducting their analysis of the totality of the 
evidence in the final merits determination, the Director did acknowledge the evidence submitted for 
the remaining criteria, including the expert opinion letters and letters of recommendation, and 
determined that this evidence did not establish the Petitioner possessed a degree of expertise 
4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 
significantly above that ordinarily encountered in the field. As such, we are not persuaded by the 
Petitioner's assertion that the Director failed to properly consider the evidence. 
As a preliminary matter, although we agree with the Director's ultimate conclusion that the record 
does not establish the Petitioner is an individual of exceptional ability, upon de novo review, we 
withdraw the Director's determination that the Petitioner met the criteria at 
8 C.F.R. §§ 204.5(k)(3)(ii)(C) and (E), relating to a license to practice the profession and membership 
in professional associations. 
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any 
occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement 
for entry into the occupation. 5 8 C.F.R. § 204.5(k)(2). 
The Director determined the Petitioner satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) based on 
his Colombian pilot license. The plain language of the regulation requires the Petitioner to provide "a 
license to practice the profession or a certification for a particular profession or occupation." 8 C.F.R. § 
204.5(k)(3)(ii)(C) [emphasis added]. While we acknowledge that the Petitioner also provided his 
Colombian airline transport pilot and instructor in aeronautical specialties licenses, he has not shown 
that any of these are licenses to practice a "profession" as defined by the regulatory definition at 
8 C.F.R. § 204.5(k)(2). Without more, we cannot conclude that the record establishes he satisfies the 
plain language of this criterion and withdraw the Director's determination to the contrary. 
Similarly, we also disagree with the Director's determination that the Petitioner met the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(E) 6 based on his memberships in the National Association of Flight 
Instructors, the Aircraft Owners and Pilot Association, and the Latino Pilots Association. Without 
additional evidence, such as their membership requirements, the Petitioner has not established that any 
of these qualify as "professional associations" as required by the plain language of this criterion and 
consistent with the regulatory definition at 8 C.F.R. § 204.5(k)(2). As such, we do not agree with the 
Director that the Petitioner has established his membership in "professional associations," and we 
withdraw the Director's determination to the contrary. 
Even though the Petitioner has not satisfied three of the six regulatory criteria, we nonetheless will 
evaluate the totality of the evidence in the context of the final merits determination. The record 
contains copies of the Petitioner's commercial pilot title diploma issued from the 
I Iin 2001, along with the academic record associated with this diploma, and a copy of his 
outstanding student certificate. Additionally, the Petititioner provided his aeronautical specialties 
instructor course certificate and diploma earned in 2002 also from the __________ 
And the Petitioner submitted evidence of multiple training certificates he obtained throughout his 
career, including evidence of his completion of the Airbus A320 Family Aircraft Technical Flight 
Familiarisation course in 2019. 
5 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
6 As noted, while the Director did not discuss this criterion in their decision, the Director previously indicated the Petitioner 
met this criterion in their RFE. 
3 
While the Petitioner claims the Director erred in considering his expertise in relation to other airline 
pilots, asserting instead that he is a "test/technical pilot and ground instructor," which is a "very 
important distinction," the Petitioner did not explain how the record establishes his expertise is 
significantly above that ordinarily encountered among test/technical pilot and ground instructors. 
Specifically, the Petitioner asserts that the Director erred in not considering the significance of his 
completion of the Airbus A320 Family Technical Flight Familiarisation course in 2019, but has not 
shown how completing this course establishes he has expertise significantly above that ordinarily 
encountered in his field. He did not, for example, compare the knowledge gained in this five-day 
course to the overall knowledge of other test/technical pilots in the field. Notably, the record contains 
articles discussing the specialized role of test/technical pilots, indicating that several test pilots in the 
United States graduate from U.S. military schools or other schools dedicated to test pilot training. Yet 
the Petitioner did not explain how his expertise is significantly above other test/technical pilots, 
especially given that he does not have the credentials that are discussed in the articles provided. The 
evidence in the record describing the course acknowledges that "[t]echnical flights require knowledge, 
skills [,] and attitudes which are different from that required for normal revenue flights," and that the 
course allows airlines to "fulfill [the] need for a specific technical flight training." The record also 
contains a summary of the contents of the training course indicating that the course covers the Airbus's 
A320 family, A330, A340 and A380, and includes 3 phases: ground school, full flight stimulator 
training, and actual aircraft flight training ultimately culminating in a four-hour flight test. But, while 
the knowledge gained from this course may be "different" from the expertise normally encountered 
among pilots, the evidence does not establish this knowledge is significantly above that ordinarily 
encountered in the field. And while the Petititioner repeatedly relies on completion of this course to 
establish his eligibility, we note that the possession of a degree, diploma or certificate alone is not 
sufficient to establish exceptional ability. 7 
The Petitioner also offered documentation of his nearly 20 years of employment history in such roles 
as a pilot in command, a pilot performing technical flight familiarization flights, a copilot, a ground 
and static simulator instructor, and an operations department assistant. But the Petitioner did not, for 
example, demonstrate how this experience related to other test/technical pilots. 
The Petitioner also submitted evidence of his membership in the National Association of Flight 
Instructors, the Aircraft Owners and Pilot Association, and the Latino Pilots Association, but the 
record does not demonstrate that these associations have any membership requirements above those 
commonly found for associations for pilots working in the field. 
Similarly, while the Petitioner submitted his Colombian pilot, airline transport pilot, and instructor in 
aeronautical specialties licenses, he did not establish how the possession of these licenses provide a 
degree of expertise significantly above that ordinarily encountered in his field. For example, the 
Petitioner did not explain or show how his licenses differentiate him from the average licensed pilot. 
Finally, the Petitioner provided employment verification letters, letters ofrecommendation, and expert 
opinion letters attesting to his experience and background; however, these letters do not establish he 
has expertise significantly above that ordinarily encountered in the field. On appeal, the Petitioner 
asserts that the Director erred in their analysis of these letters by ignoring the authors' use of such 
7 See INA 203(b)(2)(c): See also 6 USCIS Policy Manual, supra, F.5(B)(2). 
4 
phrases as "expertise and skill," "exhaustive training," "specialized training," "exhaustive education" 
and "much more is demanded: scientific and engineering knowledge." But these assertions only 
establish that the letters discuss his expertise and background, they do not establish the Petitioner has 
expertise significantly above that ordinarily encountered. 
Moreover, the letters primarily focus on the qualifications of test/technical pilots, rather than 
explaining how the Petitioner has developed expertise significantly above others in the field. For 
example, Mr. A-A-T-, Senior Flight Test Engineer and Former Head of Production Fight Test for 
_____ France discusses at length the requirements of a test/technical pilot, stating these 
pilots "must have more knowledge of the ever-evolving technology of the aircraft. .. a deep knowledge 
and understanding of the technicality of the constantly advance technology of the aircraft and its 
system," yet the letter does not discuss the Petitioner's specific knowledge, nor elaborate on how it is 
significantly above that ordinarily encountered in his field. Similarly, Capt. M- M-, Director of 
Production Flight Test at states the Petitioner's "performance during this training 
met the high standard expected of experienced airline pilots chosen to perform these tyles of technical 
flights," yet this does not establish his expertise is significantly above those in the field. The lack of 
detailed information does not place the Petitioner at a level of expertise significantly above that 
ordinarily encountered in his field. 
The totality of the evidence does not demonstrate that the Petitioner has obtained a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business, and therefore, he has 
not established he is an individual of exceptional ability as defined at 8 C.F.R. § 204.5(k)(2). 8 
B. National Interest Waiver 
Because the Petitioner has not established that he is eligible for the EB-2 classification, and this issue 
is dispositive, we decline to reach and hereby reserve our determination as to whether he is eligible 
for a national interest waiver. 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 M-F-O-, 28 I&N Dec. 408, 417 n.14 (BIA 2021) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not demonstrated that he qualifies as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. Accordingly, the Petitioner has not established eligibility for the 
immigration benefit sought. 
ORDER: The appeal is dismissed. 
8 See also 6 USCIS Policy Manual, supra, F.5(B)(2). 
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