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RemandedNational Interest Waiver · Appeal

Pilot

Aviation & transport · decided 2021-07-14 · TSC · JUL142021_01B5203

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 decided
    The Director's denial rested on this
    The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as either a member of the professions holding an advanced degree or an 1 individual of exceptional ability. established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. p. 1
  • 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

While we conduct de nova review on appeal, we conclude that a remand is warranted in this case because the Director's decision is insufficient for review. See in text

What the AAO decided

  • Accordingly, the matter will be remanded to the Director to conduct a final merits determination of the exceptional ability issue and enter a new decision. See in text
  • ORDER: The decision of the Director is withdrawn. See in text
  • The matter is remanded for farther proceedings consistent with the foregoing analysis and entry of a new decision. 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 (3)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · In Re: 12283136 · Appeal of Texas Service Center Decision · Non-Precedent Decision of the Administrative Appeals Office · Date: WLY 14, 2021 · Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National Interest Waiver)

    The Petitioner, a pilot, seeks second preference immigrant classification 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 Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as either a member of the professions holding an advanced degree or an individual of exceptional ability. established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. While we conduct de nova review on appeal, we conclude that a remand is warranted in this case because the Director's decision is insufficient for review. As presently constituted, the record does not establish whether the Petitioner qualifies as an individual of exceptional ability. See section 203(b)(2) of the Act. Specifically, the Director's conclusions regarding the criteria for exceptional ability are inconsistent. The Director stated that "evidence meets the plain language requirement" for the criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (C), and (D). However, the Director also stated that "the [P]etitioner has not provided documentary evidence which shows that [a statement in the record regarding the Petitioner's salary] demonstrates the amount of wages or remuneration that he has received is based on exceptional ability." That observation directly conflicts with the statement that the record meets the regulation's plain language requirement for that criterion. The Director further concluded that "the [P]etitioner has not met at least three of the six criteria" at 8 C.F.R. §§ 204.5(k)(3)(ii), despite having stated that the record met the regulatory requirements for three of the six criteria.

    The Director addressed whether the Petitioner qualified as a member of the professions holding an advanced degree. In a request for evidence (RFE), in relevant part, the Director informed the Petitioner that he "has not established that he has an academic record which shows that he has an advanced degree . ..." However, in response to the RFE, the Petitioner specifically stated that, although the Director requested additional evidence to establish that qualification, "because [the Petitioner] meets the [e]xceptional [a]bility classification, [I am] not providing additional evidence to show [a]dvanced [d]egree." Therefore, whether the Petitioner qualifies as a member of the professions holding an advanced degree is not an issue on appeal.

    The Director further concluded that the Petitioner had not

    Accordingly, the matter will be remanded to the Director to conduct a final merits determination of the exceptional ability issue and enter a new decision. The Director may request any additional evidence considered pertinent to the new determination and any other issue. As such, we express no opinion regarding the ultimate resolution of this case on remand.

    ORDER: The decision of the Director is withdrawn. The matter is remanded for farther proceedings consistent with the foregoing analysis and entry of a new decision.