NIW Bearings
dismissedJAN102024_02B52032024-01-10 · appeal · Texas Service Center

This is an AAO appeal decision — a case denied once and appealed. It shows how the framework is applied; it is not the filing population.

The Petitioner, a skydiving instructor, sought to continue working and teaching skydiving in the United States, claiming this would help address a national shortage of instructors and promote the health benefits of the sport.

Field: skydiving instruction · Read the decision (uscis.gov)

EB-2 threshold — not met

The occupation of skydiving instructor does not require a U.S. baccalaureate degree, so the Petitioner does not qualify as an advanced degree professional; his unrelated business degree and non-qualifying employment/membership evidence also failed to establish exceptional ability under at least three of six regulatory criteria.

Prong 1 — national importancenot established · dispositive

“These statements do not establish the nature of the endeavor or what advancements or benefits the Petitioner proposes to provide to his field.”
“a shortage of workers in an occupation is not sufficient, in and of itself, to establish that workers in that occupation should receive a waiver of the job offer requirement”
“The Petitioner has provided no documentation quantifying any specific economic impact his individual endeavor will have.”
“the general benefits of the Petitioner's industry relate to the endeavor's merit, not its national importance, which is a separate consideration under Dhanasar”

AAO decision text

How the evidence was treated

  • business plan · discounted
    “does not include any specific information about the scope or aims of the Petitioner's endeavor beyond simply working in the occupation”
    AAO decision text
  • recommendation letter · discounted
    “do not specify any contribution he has made to the field of skydiving instruction apart from being a capable skydiver and teacher”
    AAO decision text
  • certification membership · discounted
    “USPA membership only requires the payment of a fee, and is not limited to those in skydiving occupations”
    AAO decision text
  • resume experience · discounted
    “his qualifying employment... only lasted six and a half years”
    AAO decision text
  • degree · discounted
    “The Petitioner's college degree in business administration does not relate to skydiving instruction”
    AAO decision text

Where this case turned

  • Economic claims unsupported · p1 — job/revenue projections with no corroborating basis
  • Endeavor too vague · p1 — described as a job role, not a defined undertaking
  • Field importance conflated with endeavor · p1 — argues the field matters, not the specific endeavor
  • Occupational shortage argument rejected · p1 — argues a labor shortage — the labor-certification question, not Dhanasar
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Notable

AAO sua sponte identified a threshold EB-2 eligibility defect (occupation of skydiving instructor does not require a bachelor's degree, and exceptional-ability criteria unmet) not raised by the Director, but proceeded to also analyze the NIW prongs out of due-process concern since the Petitioner had not been given notice of this ground. The case involves an unusual occupation (skydiving instructor) and includes detailed analysis of USPA licensing tiers (Coach vs. Examiner) to show the Petitioner was not even qualified to train new instructors.

Authorities this decision leans on

From the doctrinal survivor set — 187 authority tests across 47 distinct authorities cleared the differential-lift gates. Only those appear here.

  • 8 C.F.R. 103.3
  • Matter of L-A-C-

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