EB2-NIW for Pilots
When the pandemic erupted, and pilots from different parts of the globe were faced with border closing and a sudden disruption in the aviation industry, there was a surge of pilots looking to reach the US, the largest aviation market, for job opportunities.
At the time, a certain EB2-NIW visa became highly popular amongst these pilots as a feasible option for a green card (permanent residency to the US). But at the end of the day, what it’s the EB2-NIW, and what are the requirements?
In a nutshell, the EB2-NIW process is a green card route to the USA that enables the petitioner to have a green card issued independent of a job offer or a sponsorship.
Nevertheless, we must demonstrate that the applicant’s endeavor is in the USA’s national interest and that the applicant is well-positioned to advance the proposed endeavor.
The EB2-NIW is neither industry-focused (it doesn’t favor pilots) nor country-focused, and every applicant that meets the criteria will have a green card granted as a result of the process.
The USCIS (U.S. Citizenship and Immigration Services) understands that an endeavor that might have “positive economic effects, particularly in an economically depressed area, may well be understood to have national importance.”
We started to take pilot cases in our firm once we saw the significant disruption in the aviation industry that would enable us to sustain that it was an area under depression. Some examples are below:
“Several U.S. airlines, including Frontier, are recruiting some pilots from Australia. American Airlines is selling bus tickets for some short routes. But some airline executives warn the shortage could take years to solve”
“The pilot shortage for the industry is real, and most airlines are simply not going to be able to realize their capacity plans because there simply aren’t enough pilots, at least not for the next five-plus years,” United Airlines CEO Scott Kirby said on a quarterly earnings call in April.”
“U.S. airlines hope to add 13,000 pilots just this year, but America produces only between 5,000 and 7,000 pilots annually, according to United Airlines CEO Scott Kirby. With fewer pilots, supply will be limited and ticket prices will continue to climb with demand.”
“Now, big industry players like Delta have made some moves to lower the barrier to entry for pilots, dropping a requirement that mandated a four-year degree for the job. Some lawmakers are even considering raising the federally-mandated retirement age for pilots by a couple of years. The CEO of United Airlines said that the shortage could impact business for the next five years.”
“Some U.S. airlines are supplementing flight routes with buses amid a country-wide pilot shortage. From June American Airlines will offer several bus routes out of Philadelphia, while United has operated bus routes to some ski destinations since 2021.”
“United Airlines CEO, Scott Kirby, told legislators that 100 of its planes are grounded due to a shortage of pilots. There has been a looming pilot shortage for the last decade in the United States, and going through COVID, it became an actual pilot shortage, Kirby said during a Senate hearing with other airline executives.”
And it was under those premises that our pilot cases have been approved so far.
In addition to demonstrating that the endeavor is in an area of national interest, we must also show that the petitioner is well-positioned to advance such endeavor.
In evaluating this requirement, USCIS considers elements related to the applicant’s experience, education, the interest of potential stakeholders, and steps towards the endeavor (how ready the applicant is. For this point, it is essential to mention how close the applicant is to his FAA license).
It is important to mention that evaluating the above criteria is subjective, and despite having successful cases under the EB2-NIW, some officer in the USCIS, due to the lack of objective guidance, might find that the workforce shortage is not enough to sustain that aviation is an area under depression and thus, the such endeavor doesn’t meet the US national interest. The USCIS’s officers are not alone in such disagreement.
As advertised by AINonline this past week, in a new story called “Airlines, Pilots Disagree on Pilot Shortage”, some believe that we live in a national crisis, such as the Regional Airline Association president and CEO Faye Malarkey Black in testimony, who called the situation “devastating” and said that despite soaring passenger demand, the shortage is decimating small community air service. “The impacts of the pilot shortage are real,” she said to AINonline. “Currently, more than 500 regional aircraft are parked, and those aircraft remaining in service are underutilized. The impact has been felt by 308 airports or almost 72 percent of all U.S. airports”.
Others, however, understand that this is a situation under control.
The fact is, the EB2-NIW is a subjective process that can render a green card for those that can sustain the visa requirements, and it is a process highly dependent on the USCIS officer reviewing the case.
By Ana Barbara Schaffert, immigration attorney at AG Immigration.
US green cards and work visas
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