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DismissedNational Interest Waiver · Appeal

Commercial aircraft pilot

Aviation & transport · decided 2023-05-08 · TSC · MAY082023_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 met
    Why
    CONCLUSION The record does not establish that the Petitioner qualifies for second-preference classification as an individual of exceptional ability; therefore, we conclude that the Petitioner has not established eligibility for the immigration benefit sought. p. 4
    The Director's denial rested on this
    However, after a final merits determination of the record, the Director concluded that the Petitioner has not established that he is an individual of exceptional ability because the record does not contain "sufficient documentary evidence to establish that he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." p. 3
  • 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

The Director further concluded that the Petitioner has not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

Main reasons given

  • In summation, the Petitioner has not established he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. See in text
  • Therefore, the record does not establish that the Petitioner qualifies for second-preference classification as an individual of exceptional ability. See in text
  • The record does not establish that the Petitioner qualifies for second-preference classification as an individual of exceptional ability; therefore, we conclude that the Petitioner has not established eligibility for the immigration benefit sought. See in text
Show 1 more
  • For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of a job offer is warranted. See in text
Read the full decision (4 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • However, after a final merits determination of the record, the Director concluded that the Petitioner has not established that he is an individual of exceptional ability because the record does not contain "sufficient documentary evidence to establish that he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." See in text (p. 3)

Full decision

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

Highlighted: Outcome (2) AAO finding (4) Tagged objection (1)Matter of X citation
Decision header
U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services · In Re: 25733302 Date: MAY 8, 2023 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, a commercial aircraft pilot, seeks classification as an individual of exceptional ability in the sciences, arts or business. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver ofthe 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. § 1153(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 satisfied the plain language of at least three ofthe six criteria for an individual of exceptional ability but that a final merits determination of the evidence does not support the conclusion that the Petitioner has exceptional ability. The Director further concluded that the Petitioner has not established 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 ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&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 dismiss the appeal.

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. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.

For the purpose of determining eligibility under section 203(b)(2)(A) of the Act, "exceptional ability" is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, p. 2 arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations further provide six criteria, at least three of which must be satisfied, for an individual to establish exceptional ability:

(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years of foll-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Analysis

The Director found that the record satisfied the plain language of at least three of the six criteria or an individual of exceptional ability, specifically the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(C), and (E). However, after a final merits determination of the record, the Director concluded that the Petitioner has not established that he is an individual of exceptional ability because the record does not contain "sufficient documentary evidence to establish that he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."Exceptional ability not established The Director further found that the record does not satisfy any of the criteria set forth in the precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of a job offer is warranted.

The Director acknowledged that the record contains "certificates documenting [the Petitioner's] completion ofvarious aviation-related courses as ofthe priority date[;] over ten (10) years of foll-time experience in his field [of commercial aviation; and] a professional license authorizing him to work as a pilot." However, the Director observed: the act of pursuing professional development or continuing educational courses are inherent to the [P]etitioner's occupation[;] possession of these certificates does not automatically render him an individual of exceptional ability because these types of qualifications are routinely conferred to numerous individuals in a variety fields[;]

In summation, the Petitioner has not established he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Therefore, the record does not establish that the Petitioner qualifies for second-preference classification as an individual of exceptional ability. See section 203(b )(2)(A) ofthe Act. We reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth in Matter ofDhanasar, 26 I&N Dec. 884. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); 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).

Conclusion

The record does not establish that the Petitioner qualifies for second-preference classification as an individual of exceptional ability; therefore, we conclude that the Petitioner has not established eligibility for the immigration benefit sought.

ORDER: The appeal is dismissed.