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MotionNational Interest Waiver · Motion to reopen

Private airline

Aviation & transport · decided 2026-02-09 · SCOPS · FEB092026_02B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not met
    Why
    On motion, the Petitioner has not met the burden of proof to establish that the Beneficiary is an alien ofexceptional ability, and therefore he is not eligible for EB-2 classification. p. 2
  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

Service Center Operations (SCOPS) denied the petition, concluding that the Petitioner did not establish that a waiver of the classification's job offer requirement, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon review, we will dismiss the motions. See in text
  • ORDER: The motion to reopen is dismissed. See in text
  • FURTHER ORDER: The motion to reconsider is dismissed. See in text

Main reasons given

  • On motion, the Petitioner has not met the burden of proof to establish that the Beneficiary is an alien ofexceptional ability, and therefore he is not eligible for EB-2 classification. See in text
  • In our appellate decision, however, we withdrew SCOPS' decision and concluded that the Beneficiary did not meet the initial evidence requirement for the requested EB-2 classification by meeting at least three of the criteria under 8 C.F.R. § 204.5(k)(3)(ii). See in text
  • We also concluded that, although SCOPS did not conduct an analysis to make a final merits determination, the record as a whole does not establish the Beneficiary's eligibility as an alien of exceptional ability. See in text
Show 1 more
  • Nor does the Petitioner assert that our previous decision that the Beneficiary was not eligible for EB-2 classification as an alien of exceptional ability was based on an incorrect application of law or policy. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (4) AAO finding (4)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · In Re: 41165048 Date: FEB. 9, 2026 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, a private airline, seeks employment-based second preference (EB-2) immigrant classification for the Beneficiary 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).

    Service Center Operations (SCOPS) denied the petition, concluding that the Petitioner did not establish that a waiver of the classification's job offer requirement, and thus of the labor certification, would be in the national interest. We dismissed a subsequent appeal and withdrew SCOPS' decision that the Petitioner had established the Beneficiary's eligibility for the requested EB-2 classification as an individual of exceptional ability. 1 The matter is now before us on combined motions to reopen and reconsider.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motions.

    A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). Because the scope of a motion is limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome).

    A motion to reconsider must establish that our prior decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Because the scope of a motion is limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.

    On motion, the Petitioner states, "USCIS found that ' [a] review of the record establishes that the beneficiary qualifies under at least three (3) of the six (6) criteria required for this classification. Therefore, this criterion has been met."' SCOPS made this statement in the denial of the petition, concluding that the Beneficiary had met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) (an official academic record which shows that the alien has a degree, diploma, certificate or similar award relating to the area of exceptional ability); (B) (letters from current of former employers showing at least 10 years of full-time experience); (C) (a license to practice the profession), and; (F) (recognition for achievements to the industry or field by peers, governmental entities, or professional or business organizations).

    In our appellate decision, however, we withdrew SCOPS' decision and concluded that the Beneficiary did not meet the initial evidence requirement for the requested EB-2 classification by meeting at least three of the criteria under 8 C.F.R. § 204.5(k)(3)(ii). Specifically, we withdrew SCOPS' determinations regarding 8 C.F.R. § 204.5(k)(3)(ii)(A) and (F). We also concluded that, although SCOPS did not conduct an analysis to make a final merits determination, the record as a whole does not establish the Beneficiary's eligibility as an alien of exceptional ability.

    The Petitioner does not assert new facts that establish the Beneficiary's eligibility for the requested EB-2 classification. Nor does the Petitioner assert that our previous decision that the Beneficiary was not eligible for EB-2 classification as an alien of exceptional ability was based on an incorrect application of law or policy. The Petitioner has not addressed the evidentiary issues we discussed in our appellate decision regarding the Beneficiary's academic records or his recognition for achievements in aviation. On motion, the Petitioner has not met the burden of proof to establish that the Beneficiary is an alien ofexceptional ability, and therefore he is not eligible for EB-2 classification. As this issue is dis positive of the motion, we will not address the Petitioner's arguments that he is eligible for a national interest waiver. 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 is otherwise ineligible). Based on the record, the motion to reopen and the motion to reconsider will be dismissed. 8 C.F.R. § 103.5(a)(4). ORDER: The motion to reopen is dismissed.

    FURTHER ORDER: The motion to reconsider is dismissed.

    NOTICE: Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 of the Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.