dismissed EB-2 NIW Case: Skydiving

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 10, 2024 In Re: 29337656 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a skydiving instructor, seeks classification as a member of the professions holding an 
advanced degree or an individual of exceptional ability in the sciences, arts, or business . Immigration 
and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a 
national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. Section 203(b )(2)(B)(i) of the Act. U.S . Citizenship and Immigration Services (USCIS) 
may grant this discretionary waiver of the required job offer, and thus of a labor certification, when it 
is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's proposed endeavor would have national importance or that, on balance, 
it would benefit the United States to waive the job offer requirement. 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 . An advanced degree is any United States 
academic or professional degree or a foreign equivalent degree above that of a bachelor's degree . A 
United States bachelor's degree or foreign equivalent degree followed by five years of progressive 
experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, 1 as well as any 
occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation. Id. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. Id. 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). Meeting at least three criteria, 
however, does not, in and of itself: establish eligibility for this classification. 2 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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. 
Neither the statute nor the pertinent regulations define the term "national interest." Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016) states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates that: 
(1) the noncitizen' s proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well-positioned to advance the proposed endeavor; and (3) that, on balance, it would 
benefit the United States to waive the requirements of a job offer and thus of a labor certification. 
II. ANALYSIS 
The Petitioner seeks to work as a skydiving instructor in the United States. The Director concluded 
that while the Petitioner meets the second prong of the Dhanasar test by being well-positioned to 
advance his endeavor, he does not meet the first or third prongs of the Dhanasar test, and so is not 
eligible for a national interest waiver. On appeal, the Petitioner submits a brief and a copy of a 
previously-submitted business plan. 
As an initial matter, we note that the record does not establish that the Petitioner qualifies for the 
EB-2 visa classification. 3 
A. Advanced Degree Professional 
The regulation at 8 C.F.R. § 204.S(k)(l) states that an EB-2 visa petition may be filed on behalf of a 
noncitizen "who is a member of the professions holding an advanced degree." The regulation at 
8 C.F.R. § 204.5(k)(2) defines a profession as "one of the occupations listed in section 101(a)(32) of 
1 Section 101 (a)(32) of the Act, 8 U.S.C. ~ 1101 (a)(32), states that "the term 'profession' shall include but not be limited 
to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." 
2 USCTS 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(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 While the denial notice does not address the issue of whether the Petitioner qualifies for the EB-2 classification, the 
Director concluded in the prior request for evidence that the Petitioner qualifies as an advanced degree professional. 
2 
the Act, as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation." 
In his Form I-140, Immigrant Petition for Alien Workers, Part 6, the Petitioner stated that he would 
work as a skydiving instructor, under the Standard Occupational Code (SOC Code) 25-3021, which is 
for "self-enrichment teachers." According to the Department of Labor's (DOL's) Occupational 
Outlook Handbook, the typical entry-level education for self-enrichment teachers is a high school 
diploma or equivalent. 4 
The petition also contains documentation from the U.S. Parachute Association (USPA) regarding the 
requirements for licensure as a skydiving instructor. This documentation indicates that skydiving 
instructors must complete various jump experience requirements and pass a written examination, but 
does not state any degree requirement. 
The record indicates that the occupation of skydiving instructor does not have a U.S. baccalaureate 
degree or a foreign equivalent as a minimum requirement for entry. Therefore, the Petitioner is not a 
member of the professions, as defined at 8 C.F.R. § 204.5(k)(l)-(2), and does not qualify as an 
advanced degree professional. 
B. Individual of Exceptional Ability 
A petitioner seeking to be classified as an individual of exceptional ability in the sciences, arts, or 
business must submit evidence that meets at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii) 
and establish that they have a degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). Because the Director concluded in the RFE 
that the Petitioner qualifies as an advanced degree professional, the Director did not address whether 
the Petitioner qualifies as an individual of exceptional ability. Upon review of the evidence provided, 
we note that the record does not establish that the Petitioner is an individual of exceptional ability. 
The Petitioner's USPA license and skydiving instructor certifications meet the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C), a license to practice the profession or certification for a particular profession or 
occupation. However, the evidence provided does not meet any of the other evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii). 
To meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), the Petitioner must provide an official academic 
record showing that he has a degree, diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to his area of exceptional ability. The Petitioner's 
college degree in business administration does not relate to skydiving instruction, and so does not 
qualify for this criterion. The course completion certificates from I I
I I are related to skydiving, but do not indicate that either of those organizations 
is an institution of learning. The Petitioner therefore has not met this criterion. 
4 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail (Sep. 6, 2023), https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm. 
3 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires employer letters showing that the Petitioner has 
at least ten years of full-time experience in the occupation for which he is being sought. The Petitioner 
provided a letter from I Istating that he was employed as a 
tandem instructor, accelerated free fall instructor, ground safety coach, and air evaluator from January 
10, 2011, to December 28, 2015, and from April 20, 2020, to November 17, 2021, or a total of six and 
a half years. He also provided a letter from I Istating that he was employed as a 
parachute packer, ground safe students/radio control worker, and video editor from June 3, 2007, to 
December 20, 2010, or about three and a half years. This letter does not indicate that the Petitioner 
was employed as a skydiving instructor at~-------~ and it is not apparent that his duties, 
such as video editing, were "in the occupation" for which he is being sought. Id. This experience 
therefore does not qualify for this criterion. Id. Because the Petitioner's qualifying employment at
I I only lasted six and a half years, he has not provided employer letters demonstrating that 
he has at least ten years of full-time experience in his occupation, as required for this criterion. Id. 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires evidence that the Petitioner has commanded a 
salary, or other remuneration for services, which demonstrates exceptional ability. The Petitioner 
provided copies of his income tax returns and pay statements for this criterion, but did not provide any 
documentation regarding how his salary compares to that of other skydiving instructors. He therefore 
has not established that his salary or other remuneration was demonstrative of exceptional ability. 
The criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires evidence of membership in professional 
associations. As evidence for this criterion, the Petitioner submitted his membership information for 
the Confederac;ao Brasileira de Paraquedismo (CBPQ) and the USPA, which are non-profit 
organizations that promote skydiving in Brazil and the United States, respectively. As noted above, 
the occupation of skydiving instructor does not require a baccalaureate degree for entry, and so is not 
a profession. See 8 C.F.R. § 204.5(k)(2). Furthermore, the record indicates that USP A membership 
only requires the payment of a fee, and is not limited to those in skydiving occupations. 5 Therefore, 
the Petitioner has not established that either CBPQ or USP A qualifies as a professional association. 
Finally, the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires evidence ofrecognition for achievements 
and significant contributions to the industry or field by peers, governmental entities, or professional 
or business organizations. The record includes the Petitioner's USP A certificates of achievement for 
reaching 132 hours of freefall and completing 9,000 jumps. First, we note that these certificates 
recognize the Petitioner's achievements as a skydiver, not as a skydiving instructor. Furthermore, 
even if these certificates recognize an achievement in the Petitioner's industry or field, they do not 
indicate that the Petitioner has made significant contributions to that industry or field, as required by 
regulation. Id. The Petitioner provided documentation regarding USP A service awards, which require 
a nomination and consideration by USPA's board of directors and "are reserved for special USPA 
members whose contributions to the organization and the sport meet the criteria established by the 
award. "6 However, the Petitioner's certificates are not USP A service awards, and are not judged by 
the USP A board of directors. Instead, these certificates are USP A achievement awards, which 
"provide a special kind of recognition to those . . . who have accumulated significant levels of 
5 U.S. Parachute Assoc., First-Time & Student Skydivers - FAQs, https://www.uspa.org/faqs ( expand the question "How 
can you become a member of USP A? Do you need to be a pro skydiver?"). 
6 U.S. Parachute Assoc., Skydiver's Information Manual at§ 8-1.3, 2, https://www.uspa.org/SIM-online. 
4 
experience in both number of freefall skydives and amount of freefall time." 7 The evidence does not 
explain how accumulating a substantial amount of skydiving experience constitutes a significant 
contribution to the Petitioner's field. 
The peer recommendation letters from P-A-, the owner ofi land M-C-, the president of the 
.__________ __.I in Brazil, speak highly of the Petitioner's abilities, but do not specify any 
contribution he has made to the field of skydiving instruction apart from being a capable skydiver and 
teacher. For example, P-A- states that the Petitioner "left a legacy of teachings and techniques that 
have been used and continue to be used by our professionals," but does not name any such teaching 
or technique or explain its significance to the field. Similarly, while J-C-L-, the owner of a parachute 
company, states that his company sponsored the Petitioner while he studied skydiving in the United 
States, he does not specify a significant contribution this sponsorship recognized. Finally, Professor 
A-J-R- is a professor of physical education and nutrition, and the Petitioner has not established that 
she is a peer, a governmental entity, or a professional or business organization, as required by the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The record, as currently constituted, does not meet at least three of the six evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii). The Petitioner's ineligibility for the EB-2 classification is normally a 
threshold issue which would also render him ineligible for a national interest waiver. However, since 
this issue was not one of the grounds of the Director's denial, and the Petitioner has not had the 
opportunity to address it on appeal, we will therefore also examine his qualifications for a national 
interest waiver. 8 8 C.F.R. § 103.2(b)(l6)(i) (stating that petitioners must be advised of derogatory 
information which is the basis of an adverse decision). 
C. National Importance of the Proposed Endeavor 
The first prong of the Dhanasar test, substantial merit and national importance, focuses on the specific 
endeavor that the Petitioner proposes to undertake. Matter of Dhanasar, 26 I&N Dec. at 889-90. 
When determining whether a proposed endeavor will have national importance, we examine the 
specific impact of that endeavor. Id. For example, an endeavor may qualify if it has national 
implications within a particular field, or if it has significant potential to have a substantial economic 
effect, especially in an economically depressed area. Id. In this instance, the Director concluded that 
while the Petitioner's endeavor has substantial merit, he did not submit sufficient evidence to establish 
that endeavor's national impact. 
On appeal, the Petitioner reiterates the claims made in the underlying petition, stating that his endeavor 
will have a national impact due to the health benefits of physical exercise and the national shortage of 
skydiving instructors. However, when determining whether a proposed endeavor would have national 
importance, the relevant question is not the importance of the industry or profession where the 
Petitioner will work, but the specific impact of that proposed endeavor. Id. 
The Petitioner states that his proposed endeavor "consists of continue [sic] to advance my career in 
the U.S. as a Skydiving Instructor contributing to direct, produce, create, and make substantial 
7 Id. 
8 The Petitioner should address this evidentiary deficiency in any future filings. 
5 
contributions for the improvement of the Skydiving Industry in the United States." He further states 
that he will "promote and advance the Skydiving field through knowledge, innovation, creativity, 
research, [and] counseling." These statements do not establish the nature of the endeavor or what 
advancements or benefits the Petitioner proposes to provide to his field. See generally 6 USCIS Policy 
Manual, supra, at F.5(D)(l) ("The term 'endeavor' is more specific than the general occupation; a 
petitioner should offer details not only as to what the occupation normally involves, but what types of 
work the person proposes to undertake specifically within that occupation."). The Petitioner's 
business plan similarly does not include any specific information about the scope or aims of the 
Petitioner's endeavor beyond simply working in the occupation of skydiving instruction. 
We acknowledge the various materials provided regarding the national shortage of skydiving 
instructors. However, DOL directly addresses U.S. worker shortages through the labor certification 
process. Therefore, a shortage of workers in an occupation is not sufficient, in and of itself, to establish 
that workers in that occupation should receive a waiver of the job offer requirement. See Matter of 
Dhanasar, 26 I&N Dec. at 885; see also 20 C.F.R. § 656.1. 
Similarly, we acknowledge the provided evidence about the health benefits of exercise activities such 
as skydiving. However, the general benefits of the Petitioner's industry relate to the endeavor's merit, 
not its national importance, which is a separate consideration under Dhanasar. Matter ofDhanasar, 
26 I&N Dec. at 889. In Dhanasar, the Petitioner's work as a science teacher was found to have 
substantial merit but did not qualify him under the first prong because the evidence did not show how 
that work would impact the field of science education more broadly. Id. Similarly, the record here 
does not establish what specific impact the Petitioner's endeavor would have on the broader field of 
skydiving instruction. 
As noted above, the Petitioner's support letters do not name any specific impact he has had on their 
organizations or their industry. Similarly, the Petitioner states that he intends to train other skydiving 
instructors in order to address the shortage of such workers, but includes no information about how 
many students he will teach, when or where he will do so, or any other information indicating how 
having one more skydiving instructor in the United States would impact the number of new skydiving 
instructors on a national level. 9 Furthermore, the two letters from U.S. skydiving facilities which 
express an interest in hiring the Petitioner do not indicate that he will teach other instructors. While a 
national interest waiver petition does not require a job offer, it does require the Petitioner to submit 
relevant, probative, and credible evidence establishing that endeavor's nature and impact. See Matter 
of Chawathe, 19 I&N Dec. at 3 7 6 ( explaining the preponderance of the evidence standard used in 
these proceedings). The Petitioner has not done so here. 
Finally, while the Petitioner's support letters speak highly of his abilities, this documentation relates 
to the second Dhanasar prong regarding whether he is well-positioned to advance the proposed 
endeavor. It does not relate to that endeavor's impact. The Petitioner has not provided documentation 
9 We further note that the Petitioner is licensed as a USPA Coach, which is the entry-level instructional rating, and therefore 
is not qualified to train new skydiving instructors in the United States. U.S. Parachute Assoc., Experienced Skydivers -
Earning Licenses & Ratings, https://www.uspa.org/eaming-licenses-ratings (explaining the three USPA instructional 
ratings and stating that "Coaches can teach the general sections of the first-jump course and train and supervise students 
for group skydiving skills ... under the supervision of instructors," while those with the highest rating, Examiner, "train 
new coaches and instructors"). The Petitioner has not stated any plans to earn an Examiner rating. 
6 
of how his employment as a skydiving instructor, in and of itself: would have an impact extending 
beyond his immediate circle of students and employers to affect the broader field of skydiving 
instruction on a nationally important level. Matter ofDhanasar, 26 I&N Dec. at 889. 
An endeavor may qualify under the first prong if it has significant potential to employ U.S. workers 
or have other substantial positive economic effects, particularly in an economically depressed area. 
Id. The Petitioner claims that his endeavor will aid the U.S. economy through unspecified "ripple 
effects" due to being a part of an economically valuable industry. However, as noted above, an 
endeavor's national importance is determined by the impact that is specifically attributable to that 
endeavor, not the collective impact of the entire field that endeavor is in. Id. The Petitioner has 
provided no documentation quantifying any specific economic impact his individual endeavor will 
have. As such, he has not established that the endeavor will have the kinds of "substantial positive 
economic effects" contemplated by Dhanasar. Id. The record does not indicate that the Petitioner's 
endeavor will have national importance. 
Because the Petitioner has not established his eligibility under the first prong of the Dhanasar test, we 
need not address his eligibility under the third prong and hereby reserve this issue. 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 ofL-A-C-, 26 I&N 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant did 
not otherwise meet their burden of proof). 
III. CONCLUSION 
The Petitioner has not established that he is eligible for or otherwise merits a national interest waiver 
as a matter of discretion. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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