Can Airline Pilots Get a Green Card in Category EB-2 With a National Interest Waiver?

Airline pilots have been hoping to immigrate to the United States without having to go through the usual labor certification requirement, using a National Interest Waiver (NIW). Find out details here.

By , Attorney (University of Miami School of Law)

If you are an airline pilot looking to immigrate to the United States, you might have heard rumors or found websites claiming there's an easy path to a green card through an EB-2 immigrant visa with a National Interest Waiver (NIW). The United States is, after all, facing a recent shortage of professional pilots, which one might think would be justification for a waiver of some of the usual application requirements. Before you start down that path, however, you should know the facts: Although some pilots with special qualifications might conceivably qualify for an EB-2 visa with an NIW, the average pilot most likely will not be successful. Many such cases have already been denied.

What Is the EB-2 Visa and What's a National Interest Waiver?

The U.S. has five categories of employment-based immigrant visas (that is, permanent residence, "green card" visas). The EB-2 or "second preference" category is for non-citizen workers who either have advanced degrees or can demonstrate exceptional ability in the sciences, arts, or business. Typically, this visa requires the worker to have lined up a job offer from a U.S. employer. The employer then has to justify hiring a foreign worker by going through something called the "labor certification process" to prove that no qualified U.S. workers are available to take the job. This complicated process takes time and money, as further described in Procedures to Sponsor a Worker for a Green Card.

However, a worker can get around the labor certification requirement by asking for a National Interest Waiver (NIW). This requires demonstrating that the worker's professional pursuits are so important to U.S. national interests that the government would be better off waiving the labor certification requirement and permitting the worker to come over and start work right away.

To obtain a green card through this path, a worker has to meet the qualifications for both the visa and the waiver, which have separate requirements. For more information on EB-2 and NIW, see EB-2 Visa for Advanced Degree Professionals: Who Qualifies? and EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?

When Can Airline Pilots Qualify for EB-2 Visas?

Before an a National Interest Waiver can be granted, a petitioner first has to establish eligibility for the underlying EB-2 visa. It might be possible to qualify for an EB-2 visa as an airline pilot in one of two ways.

The first possibility is for pilots who meet the criteria for EB-2 "advanced degree professionals."

The other way is to meet the criteria for a person of "exceptional ability." This requires convincing United States Citizenship and Immigration Services (USCIS) that the pilot has expertise significantly higher than the average pilot, by providing specific types of evidence to meet certain criteria.

Even if a pilot can technically meet the criteria required for an EB-2 person of exceptional ability visa, that might not be enough. It does not in and of itself determine whether a pilot (or other worker) has exceptional ability. If the pilot's qualifications are typical for an average airline pilot, or even above average pilot, USCIS will probably find them insufficient. Ultimately, the pilot has to prove expertise significantly above that of the average pilot.

Can Airline Pilots Qualify for a National Interest Waiver (NIW)?

In the past few years, the U.S. has experienced a shortage of airline pilots. Because of this, many pilots have filed EB-2 NIW petitions. So far, USCIS and the courts have consistently denied these . Many were rejected simply for failing to establish exceptional ability, even in cases where the pilot technically met the criteria. Even pilots with advanced degrees, however, were rejected for failing to qualify for the National Interest Wavier.

When some of these cases were appealed, the courts explained different reasons why the average pilot does not qualify for the NIW: Letting in a single pilot does not impact the shortage of pilots on a national scale. Flying for a commercial airline serves only the employer and employee, and also does not have a national impact.

Even if a pilot comes up with a creative "proposed endeavor" (planned professional pursuits in the U.S.) and USCIS decides it has "substantial merit" (it will contribute to important U.S. interests), the pilot still has to convince USCIS that it will have a national impact. Even pilots who proposed to train new pilots were denied.

As explained in one recent case, the reason even creative arguments fail boils down to the labor certification requirement: a labor shortage is exactly the kind of problem that the labor certification process is designed to address in the first place, so a pilot shortage does not justify skipping that process.

Despite all of the above, it remains possible USCIS would approve a petition for a pilot who will have a demonstrably drastic impact on the field, such as someone who plans to serve as leadership at a flight academy. Pilots with top qualifications might want to consult an attorney and ultimately give it a try. For typical commercial airline pilots, however, it seems certain that the EB-2 visa with a NIW is not a viable pathway.

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