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PilotsGlobal and Dun Law Firm see the rise in rejections for Pilot based NIW applications.
Cases filed over the last year for an NIW have become increasingly difficult for applicants to receive a positive outcome. Per the cases seen by Dunn Law Firm and PilotsGlobal, almost every pilot application is receiving a Request For Evidence (RFE); which puts the burden of proof on the applicant to demonstrate their specific candidacy is in the National Interest of the United States of America. Even so, even strong cases with many years of full time experience are getting denied. The observation is that a recent influx of unqualified pilot cases has triggered US Customs and Immigration Services to increase scrutiny on all pilot cases.
Anyone applying for an NIW should have an extremely well laid out case clearly describing exactly how their specific circumstances are of particular need to the aviation industry in the United States, and even then success is not guaranteed. PilotsGlobal and its partners keep monitoring the progress of NIW development and will publish further updates when such become available.
Since the original posting in April 2022, there have been many commercial pilot cases filed. The successful cases we have encountered have involved pilots who are not intending to just fly commercially but will make additional contributions such as advanced flight instructors, safety, testing, etc. The purely commercial pilot cases that we are aware of have by and large been denied. There are five recent Administrative Appeals Office decisions that align with the initial information provided by PilotsGlobal in conjunction with its legal partner Dunn Law Firm LLP.
The AAO decision In Re: 22681420, denied a pilot’s application for a National Interest Waiver (NIW) based on the fact that they failed to establish the national importance of flying as a commercial pilot. The USCIS noted that allowing one pilot to obtain a green card to fly planes commercially in the U.S. would not have a significant enough impact. The pilot claimed they would also work as flight instructor but failed to provide adequate evidence to differentiate between the two roles.
In a similar case, In Re: 22679096, the decision stated, “while the Petitioner's services as a pilot will benefit his employer and the passengers he transports, the evidence does not support a finding that the Petitioner will meaningfully diminish the airline pilot shortage as a result of his proposed endeavor.” The language in the AAO decision aligns with what we initially posted in April 2022: “The work of a commercial pilot is typically in the interest of their employer and their work is not having an impact beyond the airline and the passengers they fly. The scope of the impact is too narrow to be in the national interest.”
The case also, stated that although the petitioner provided evidence of the shortage of airline pilots it is “the labor certification process addresses shortages of qualified workers in fields.” This finding aligns with our prior statement that, the “best way for a commercial pilot to get a green card is through employer sponsorship. Airlines who have a shortage can take advantage of the EB2 - PERM process.”
While these are just two examples of cases being denied by USCIS and upheld on appeal by the AAO, there are several more that confirm that applying for an NIW as a commercial pilot is likely not going to be successful. See In Re: 26399878; In Re: 25672675; In Re: 24570782; In Re: 24443910.
Of note, based on a review of the AAO decisions over that past year, there are numerous cases where applications were filed, and the pilots who applied were not able to meet the threshold requirement of establishing exceptional ability. See In Re: 26407717; In Re: 23042194; In Re: 23037554.
An example of how rumors can get out of hand, the case of In Re: 25786965 sums it up best. A pilot case was filed based on the following: "I recently saw that as pilots we can apply for the green card because in the USA there is a huge lack of pilots due to lots of retirements in the airlines." Needless to say, this case was also denied.
Green cards are being approved for qualified pilots who can establish national importance, however, as stated in the initial post last year, there are very specific requirements that are not easily met.
In the light of recently widespread information claiming that commercial pilots are eligible for green cards under the National Interest Visa Waiver program, and the claims that President Biden declared that because of a pilot shortage, it is in the national interest to hire foreign pilots, PilotsGlobal and its legal partner Dunn Law Firm LLP, would like to bring additional clarity on the topic.
To begin, the National Interest Waiver filing for pilots is a fairly complex process, primarily because there is typically not an advanced degree and it can be a challenge to satisfy the national interest requirement.
There is a rumor that commercial pilots are eligible for green cards under the National Interest Visa Waiver program. One rumor claimed that President Biden declared that because of a pilot shortage, it is in the national interest to hire foreign pilots. This is simply not true.
To entice commercial pilots to apply for a green card, there is information that has been posted online that demonstrates that pilots can meet the exceptional ability criteria and do not require an advanced degree to apply for a National Interest Waiver. While this may be true for many pilots, the exceptional ability requirement is only the minimum qualification and the threshold issue.
Once an individual can establish they meet the exceptional ability threshold, they must then establish that they qualify for the waiver. The biggest hurdle to overcome is being able to establish national interest. To meet this prong you must be making contributions to your field beyond your employer that have a broader impact on your field. This is typically shown for researchers through peer-reviewed publications and citations, showing that others are relying on their work. For commercial pilots, this can be difficult to establish. The work of a commercial pilot is typically in the interest of their employer and their work is not having an impact beyond the airline and the passengers they fly. The scope of the impact is too narrow to be in the national interest. Where we have had witnessed success meeting the national interest for pilots is in cases where they are working as medivac pilots flying in medically underserved areas or hard-hit areas during COVID. Pilot instructors who teach others to become pilots to lessen the impact of the pilot shortage. Pilots working in some capacity with the U.S. government, such as test pilots. Pilots working in a safety capacity, including accident investigation. Flying as a commercial pilot by itself does not meet this standard.
We have heard of some cases for commercial pilots being approved. However, these cases, if true, are going to be the exception to the rule. The vast majority of commercial pilot cases will be denied. The worst thing we are hearing is that some pilots are filing both an I-140 and I-485 concurrently. While this may get you an employment authorization to work in the U.S. while your case is pending. If the I-140 is denied, you will lose your work authorization and you will have to leave the country. Also, since you have made a declaration of immigrant intent it can be difficult to obtain a non-immigrant visa to the U.S. in the future.
The best way for a commercial pilot to get a green card is through employer sponsorship. Airlines who have a shortage are can take advantage of the EB2 - PERM process. Additionally, pilots from Australia can get a temporary non-immigrant E3 visa to fly commercially in the U.S.
The PilotsGlobal in partnership with Dunn Law Firm LLP.
The rumor that Commercial Pilots qualify for an NIW based on the pilot shortage is false. There is no “Pilot Green Card”. Commercial pilots need to typically be sponsored by an employer for an employment visa and they can also be sponsored by an employer for a green card. Certain airlines occasionally are sponsoring foreign pilots for H1B visas through the H1B lottery. To qualify for an NIW a pilot must have additional skills and qualifications that would be deemed to be in the national interest and they would need to have a letter from a U.S. employer expressing an interest in hiring them in that capacity (instructor, safety, accident investigation, etc.). We have received hundreds of inquiries from pilots but only a handful have any chance of success. Where the confusion lies is that there were articles published that suggested pilots meet the exceptional ability standards without an advanced degree. While that may be the case, meeting the exceptional ability criteria is just the beginning. From there the pilot needs to either be sponsored (EB2 – PERM) or if they can satisfy the requirements to qualify under the national interest, they can self sponsor. Flying for a commercial carrier is not in the national interest.