remanded EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 28, 2023 In Re: 28455305 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an airline pilot, seeks classification as a member of the professions holding an advanced 
degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). The 
Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 
immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § l l 53(b )(2)(B)(i). 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 is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. 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 l&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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. Section 203(b )(2)(B)(i) of the Act. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar , 26 I&N Dec. 884, 889 
(AAO 2016) provides that USCIS may, as matter of discretion, 1 grant a national interest waiver if the 
petitioner shows: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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. 
II. ANALYSIS 
The Petitioner, an airline pilot, proposes to work in the United States in the aviation field as a 
commercial pilot and flight instructor. The Director determined that the Petitioner established his 
eligibility as a member of the professions holding an advanced degree based on his possession of the 
foreign equivalent of a U.S. master's degree in aeronautics. However, the Director concluded the 
Petitioner did not establish that a waiver of the requirement of a job offer, and thus a labor certification, 
would be in the national interest. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The Director's decision 
concluded that "substantial merit and national importance is met." However, the decision does not 
sufficiently explain the basis for this determination. 
For example, with the petition, the Petitioner provided a statement indicating as follows: 
I intend to continue using my expertise and knowledge working in the aviation field in 
the United States, where I can help fill the many and alarming number of pilot positions 
in the U.S., as well as train others in the field, whether experienced pilots, or new 
professionals entering the field. I have 23 years of experience in this field, proven 
experience in operating a wide variety of aircraft, and thousands of flight hours in my 
profession. 
I intend to continue using my expertise and knowledge in the field of aviation by 
working as a pilot in the U.S. I plan to use my skill set to help curtail the shortage of 
pilots in the U.S. I already hold the airline transport pilot license from the Federal 
Aviation Authority (FAA), which will allow me to immediately fulfill my proposed 
endeavor in the U.S. 
The Petitioner provided letters of support, an expert opinion letter, and articles and reports regarding 
the aviation industry in support of his eligibility under the first prong. The Director should analyze 
the evidence to determine whether the record sufficiently demonstrates the endeavor has substantial 
merit and national importance. The endeavor's merit may be demonstrated in a range of areas, such 
as business, entrepreneurialism, science, technology, culture, health, or education. 2 In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
See Dhanasar, 26 I&N Dec. at 889. The Director should focus on what the Petitioner will be doing 
rather than the specific occupation. An endeavor having significant potential on the broader 
2 See generally 6 USC1S Policy Manual F.5(D)(l ), https://www.uscis.gov/policymanual. 
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implications for a field or region generally may rise to the level of having national importance for the 
purpose of establishing eligibility for a national interest waiver. 3 The Director should review the 
record to determine whether the Petitioner has demonstrated his proposed endeavor has significant 
potential on the broader impact in the field. 
If the Director concludes that the Petitioner's documentation does not meet the substantial merit or 
national importance requirements of Dhanasar 's first prong, the decision should discuss the 
insufficiencies in the evidence and adequately explain the reasons for ineligibility. 
B. Well Positioned to Advance the Proposed Endeavor 
In the second prong, the focus shifts to the petitioner and their positioning to advance their proposed 
endeavor, and we look at several factors in making this determination. We consider factors including, 
but not limited to: their 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. Id. at 890. 
For Dhanasar's second prong, the Director concluded that while the record shows the Petitioner "has 
gained skills and experience in his field of endeavor," it did not demonstrate that the Petitioner is well 
positioned to advance the proposed endeavor. However, the decision did not sufficiently explain the 
basis for the determination. The decision does not describe the evidence reviewed by the Director to 
make the determination, nor does the decision analyze any evidence submitted by the Petitioner. The 
decision states: "After consideration of the following non-exhaustive list of factors, among others, the 
record is insufficient to establish that the [Petitioner] is well positioned to advance the proposed 
endeavor." The Director, however, did not list the factors to which they referred, and simply 
concluded in the next sentence that the record did not establish that the Petitioner is well positioned to 
advance the proposed endeavor. 
On appeal, the Petitioner argues that he demonstrated by a preponderance of the evidence that he is 
well positioned to advance the proposed endeavor. The Petitioner reiterates his qualifications and 
commitment to advance his proposed endeavor and asserts that the evidence of his "extensive 
experience, professional record, and expertise in the aviation industry," submitted initially and in 
response to the Director's request for evidence (RFE), is sufficient to satisfy this prong. The Director, 
however, did not discuss or acknowledge any of this evidence or explain why such evidence was 
insufficient. 
An officer must folly explain the reasons for denying a petition in order to allow a petitioner a fair 
opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 
See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a 
decision must folly explain the reasons for denial to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Here, the Director's decision did not adequately address the 
evidence submitted with the petition or in response to the RFE. The Director should analyze the 
evidence to determine if the Petitioner is well positioned to advance the proposed endeavor. 
3 See id. 
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Accordingly, we withdraw the Director's determination that the Petitioner does not meet the second 
prong of the Dhanasar framework. Any new determination by the Director must consider all of the 
evidence offered for prong two, including the Petitioner's academic record, certifications and 
trainings, expert opinion letter, letters of support and recommendation, and industry articles and 
reports. The Director should analyze the specific content of the record to determine if this 
documentation renders the Petitioner well positioned to advance the proposed endeavor. If the 
Director concludes that the Petitioner's documentation does not meet Dhanasar 's second prong, the 
decision should discuss the insufficiencies in the evidence and adequately explain the reasons for 
ineligibility. 
C. Balancing Factors to Determine Waiver's Benefit to the United States 
As to the third prong of Dhanasar, the Director stated the law and the relevant considerations in 
performing the third prong's balancing analysis and concluded that the Petitioner "has not established 
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." However, the Director did not discuss the evidence weighed in 
balancing those considerations or address the Petitioner's specific claims as to the third prong. 
Without a proper evaluation of the factors identified in Dhanasar 's third prong, the Director's 
determination for this prong was in error. If the Director concludes that the Petitioner's documentation 
does not meet this prong, the decision should address the Petitioner's arguments and evidence, and 
explain the relative decisional weight given to each balancing factor. 
III. CONCLUSION 
For the reasons outlined above, we are remanding the petition to the Director to determine if the 
Petitioner has established eligibility for a national interest waiver and to enter a new decision. The 
Director may request any additional evidence considered pertinent to the new determination. As such, 
we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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