remanded EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 2, 2024 In Re: 28962740 
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 record did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be 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 ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). While we conduct de novo review on 
appeal, Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand 
is warranted in this case because the Director's decision is insufficient for review. The decision lacks 
analysis and discussion of the evidence in the record and reaches conclusory findings with respect to 
the Petitioner 's eligibility for the requested national interest waiver. Accordingly, we will withdraw 
the Director's decision and remand the matter for entry of a new decision consistent with the following 
analysis. 
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) . Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 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. 
Although the Petitioner submitted evidence to establish that he met five (of the six) criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F), the Director did not make a determination with respect to whether the 
Petitioner qualifies as an individual of exceptional ability. 1 The record contains evidence including 
his associate's degree in aeronautics fro~~-'1.______________ ___,Jdated October 31 
2020 a work ex erience letter co ies of his licenses evidence of his membershi in the 
.________ ....., information about awards he has received, and four support letters. 
On remand, the Director should evaluate the Petitioner's evidence and determine ifhe has met at least 
three of the above criteria. If the Petitioner is found to meet at least three criteria, the Director must 
then conduct a final merits determination and review the evidence in its totality to determine if he has 
established he possesses a degree of expertise significantly above that ordinarily encountered in his 
field. See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual 
( describing the two-step evidential review process used in determinations for exceptional ability 
petitions). 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that we may, as matter 
of discretion, 2 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. 
According to the Petitioner's January 2023 professional plan and statement, his proposed endeavor is 
to work as a commercial pilot and to continue using his expertise and knowledge in the field of aviation 
to fill the gap for the well-documented shortage of pilots by training new and current pilots. The 
Director determined, without any discussion, that the Petitioner's evidence met prong one of the 
Dhanasar analytical framework. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar, 26 I&N Dec. at 889. We indicated that "we look for broader 
implications" of the proposed endeavor and that "[a]n undertaking may have national importance for 
example, because it has national or even global implications within a particular field." Id. We also 
stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other substantial 
positive economic effects, particularly in an economically depressed area, for instance, may well be 
understood to have national importance." Id. at 890. 
The Petitioner provided a number of articles and industry reports addressing topics such as the 
economic impact of civil aviation on the U.S. economy, the airline industry's resurgence after the 
1 The Petitioner did not submit evidence to establish that he is an advanced degree professional, as such. to establish his 
eligibility for EB-2 classification, the Director need not consider this eligibility under the advanced professional standard 
found at 8 C.F.R. § 204.5(k)(2). 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding the U.S. Citizenship and Immigration Service's 
decision to grant or deny a national interest waiver to be discretionary in nature). 
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COVID-19 pandemic, and the shortage ofpilots. We note, however, that the labor certification process 
itself is intended to address labor shortages. Further, while such information may help establish the 
substantial merit of the Petitioner's proposed endeavor, in determining national importance, the 
relevant question is not the importance of the industry in which the individual will work; instead, we 
focus on the "the specific endeavor that the foreign national proposes to undertake." Id. at 889. Here, 
the reach of his endeavor appears limited to those passengers and students he may have in the future 
as a pilot or aviation instructor. 
Because the Director's decision did not identify any of the submitted evidence or provide any analysis, 
it is unclear why it was determined that the Petitioner met prong one. Therefore, we are withdrawing 
the Director's determination the Petitioner met prong one. Moreover, we note the Director's analysis 
regarding the remaining two prongs was also inadequate. An officer must fully explain the reasons 
for denying a visa petition. See 8 C.F.R. § 103.3(a)(i). Furthermore, a decision denying a benefit must 
include the specific reasons for denial and sufficiently explain the underlying deficiencies to allow a 
petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful 
appellate review. See, e.g., Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that the reasons for 
denying a motion must be clear to allow the affected party a meaningful opportunity to challenge the 
determination on appeal). 
For the above reasons, we will withdraw the Director's decision and remand this matter for further 
consideration and entry of a new decision. On remand, the Director should review the entire record, 
including the Petitioner's appeal, and determine whether he has established eligibility for both the 
underlying classification as an individual of exceptional ability and each of the three prongs of the 
Dhanasar framework. The Director may request any additional evidence considered pertinent to the 
determination prior to issuing a new decision. 
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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