remanded EB-2 NIW Case: Aviation

U.S. Citizenship 
and Immigration 
Services 
In Re: 25490445 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 3, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a pilot and flight instructor, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree and as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S .C. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
properly applied for a national interest waiver because he did not submit either the Form ETA 750B 
or Form ETA 9089 .1 The matter is now before us on appeal. On appeal, the Petitioner presents a 
completed copy of Form ET A 9089 parts J, K, and L and asserts that the Director did not afford him 
an opportunity to provide this document before denying the petition . 2 
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 Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we conclude that the Petitioner's submission of Form ETA 9089 overcomes the Director's sole basis 
for denial. We will therefore withdraw the Director 's finding that the Petitioner has not properly 
applied for a national interest waiver. However, because the Director did not render a determination 
on the Petitioner's eligibility for the underlying EB-2 visa classification and on the merits of his 
request for a national interest waiver, we will 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 
1 The regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national interest] exemption the 
petitioner must submit Form ET A 750B, Statement of Qualifications of Alien, in duplicate ." Alternativel y, USCIS will 
accept parts J, K, and L of Form ETA 9089, Application for Permanent Employment Certification. See 6 USCJS Poli cy 
Manual F.S(D), https://www.uscis.gov/policy-manual/volum e-6-part-f-chapt er-5. 
2 The record indicates that the Director did not issue a request for evidence (RFE) or a notice of intent to deny (NOID) 
prior to denying the petition . 
of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(B)(i) of the Act. If a 
petitioner demonstrates eligibility for the underlying EB-2 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 I&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. 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
The Director's decision did not address if the Petitioner qualifies as a member of the professions 
holding an advanced degree. To qualify as a member of the professions, an individual must meet "one 
of the occupations listed in section 101(a)(32) of 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." 8 C.F .R. 204.5(k)(2). 4 The Petitioner has not demonstrated that his occupation of pilot or 
flight instructor qualifies as a member of the professions. The position is not one of the occupations 
listed in section 101(a)(32) of the Act and the Petitioner has not presented evidence that a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry in his occupation. 
Further, in order to show an individual holds an advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present 
"[aa ]n official academic record showing that the alien has a United States baccalaureate degree or a 
foreign equivalent degree, and evidence in the form of letters from current or former employer(s) 
showing that the alien has at least five years of progressive post-baccalaureate experience in the 
specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). On remand, the Director should consider if the Petitioner 
qualifies as a member of the professions and if he meets either of the regulatory requirements for 
holding an advanced degree set forth at 8 C.F.R. § 204.5(k)(3)(i)(A) and (B). 
B. Exceptional Ability 
The Director's decision did not render a determination as to whether the Petitioner satisfies at least three 
of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required 
for exceptional ability classification. On remand, the Director should consider the Petitioner's 
arguments and evidence to determine if he has met three of the regulatory criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). If so, the Director should then conduct a final merits determination to conclude whether 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
4 Section 101 (a)(32) of the Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
2 
the Petitioner has achieved the level of expertise significantly above that ordinarily encountered for 
exceptional ability classification. See 8 C.F.R. § 204.5(k)(2). 
C. National Interest Waiver 
The Director's decision did not consider if the Petitioner meets the requirements for a national interest 
waiver set forth in the Dhanasar precedent decision. The Director should properly apply all three prongs 
of the Dhanasar analytical framework to determine whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus a labor certification, would be in the national interest. 
III. CONCLUSION 
Because the Petitioner has overcome the Director's sole basis for denial, we are remanding the matter 
for the Director to determine if the Petitioner has established eligibility for the underlying EB-2 visa 
classification and for a national interest waiver of the job offer requirement under the Dhanasar 
framework. The Director should afford the Petitioner a reasonable opportunity to respond to all issues 
raised on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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