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How to put together a winning NIW case for a pilot

A pilot flying a plane

Don’t fall for lawyers who claim that all pilots have a great case for a national interest waiver (NIW) green card because the United States has a shortage of pilots. That is simply not true.

NIW applications are assessed through the three-prong legal test set out by Matter of Dhanasar. The first requirement is that an applicant’s proposed endeavor in the United States must have substantial merit and national importance. “Doesn’t it automatically serve the national importance to bring in pilots to fill vacant jobs when the U.S. has such an extreme shortage of pilots?” Goes the argument.

Although it sounds attractive, it is a misleading one. Recent case law has made it clear that an individual pilot’s proposal to move to the U.S. to fill a pilot position that is vacant due to the U.S. shortage of airline pilots is not a sufficient basis for national importance. Here is an example of such a case.

Having said that, a pilot may still qualify for a green card through NIW if they can show evidence of how their work will advance and develop the field of aviation more broadly. Put in a different way, can the pilot offer original innovations that will contribute to the broader aviation industry?  If so, the argument becomes more persuasive that the pilot’s professional activities in the US will offer broader impacts to the industry beyond filling one single job vacancy.

Note that providing training or educational services to other pilots is a weak argument to support this broad impact. In Matter of Dhanasar, the court specifically noted that the impact of the applicant’s teaching activities did not rise to the level of national importance because the benefits would be limited only to the students who receive such training.

On the other hand, research and development (R&D) initiatives in aviation (and in any field), especially those that result in papers that are published in scientific journals and presentations in industry conferences, or the publication of patents, are favorable evidence of industry-wide impact. This is because publication of research provides new insights to other experts who refer to these papers and patents, and such discoveries can be applied to a variety of projects across the field.  If the R&D results have not been shared publicly, we would ask whether the results were commercialized or otherwise applied in practice, and how broadly was this new technology implemented.

Submitting an immigrant petition, even if ultimately denied, has significant consequences on your future non-immigrant visa applications depending on your situation. It is very important to retain the advice of an experienced lawyer who can accurately advise you of the chances of your NIW application so that you can make a properly informed decision on whether to go forward with your NIW.

Related post: “I am an airline pilot. Can I qualify for a green card based on EB-2 National Interest Waiver (NIW)?”

Related post: Strategizing NIW – Substantial Merit and National Importance

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