Immigrant Visa Options for Pilots in the USA

At the moment, there is indeed a shortage of commercial pilots in the US aviation industry. This is evidenced by numerous statements by airline representatives in the US, as well as by high-ranking officials from relevant US government agencies. Moreover, the U.S. Department of Labor has published projections regarding the pilot profession, which state that the industry needs 16,800 new pilots annually. Experts state that U.S. flight schools are currently unable to meet this need for various reasons, including a shortage of instructors. The result of this situation in the industry is numerous flight cancellations and delays, airlines closing a number of flight destinations, increased workload on existing pilots, and so on.

Given the magnitude of the problem, one way to solve it would be to bring qualified airline pilots to the US from abroad. Unfortunately, pilots cannot simply come to the U.S. and get a job with an airline. Moving to the U.S. to work as a pilot requires a non-immigrant work visa or U.S. residency (Green Card).

The current U.S. immigration system is far from ideal, and in addition to this, the immigration service is significantly underfunded, which significantly affects the speed and quality of its work. It is indicative of the fact that some residency applicants (Green Card) are required to wait 5-10 years for a decision on their petitions. Fortunately, this situation does not apply to all categories of applicants, and the US immigration authorities periodically make procedural changes to optimize and speed up their work.

Below, we will explain a few ways pilots can explore to obtain documents that you may want to consider moving to the United States. It should be noted that none of the following is a guaranteed way to get a visa or U.S. residency (Green Card). Obtaining a nonimmigrant work visa requires the applicant to file an application for a visa; while obtaining an immigrant visa requires the applicant to file a petition. It is always up to the immigration officer who reviews the documents to approve the residency petition or pilot visa application. The officer may deny the visa application or petition if he/she disagrees with some of the evidence provided.

Option 1: EB-2NIW – immigrant visa for professionals whose work is is the national interest of the United States

The main advantage of this method is that it leads the petitioner to a Green Card and does not require an employer. However, even a statement from a potential U.S. employer confirming the intent to hire the petitioner can significantly strengthen the petition.

The evidentiary basis for the EB-2NIW pilot visa petition includes several steps.

The first step requires proof that the petitioner has a college degree above the bachelor’s level or a bachelor’s degree plus five years of progressive experience in the education profession. In some cases, it may be possible to show that the petitioner meets this requirement if he or she can show exceptional achievements in his or her field.

The second step requires a showing that what the petitioner plans to do in the United States has substantial merit and is of national importance to the United States. It is important to note that the concept of national importance requires showing that the petitioner’s occupation has a possible positive economic impact on the U.S., the potential to create new jobs, cultural enrichment, and the potential to contribute to the development of the U.S. economy.

The third requires proof that the petitioner is well-positioned to advance the proposed endeavor. It is essential that the petition include as much documentary evidence of the petitioner’s competencies and accomplishments as possible. It is also a significant plus to show that the petitioner has already taken specific steps to realize the proposed endeavor – finding an employer, starting a business, preparing a business plan, investing in the business, finding investors or partners, etc.

The fourth requires a showing that, based on the totality of the circumstances and the petitioner’s evidence, it would be beneficial to the United States to waive the requirements of a job offer and, thus, of a labor certification. Success in proving this criterion depends largely on how well-documented and argued the previous three criteria are.

Preparing an EB-2NIW pilot visa petition requires a detailed analysis of the petitioner’s situation and documents. The attorney’s job is to guide the client through the entire petition process, gathering, analyzing, and presenting evidence to the officer in a way that allows him or her to evaluate and, hopefully, approve the petition. The petitioner’s documents often include technical and purely professional data. The immigration officer who reviews the petition typically does not have in-depth knowledge of the petitioner’s field, so another challenge for the attorney is to explain all the documents and information to the officer.

It is also essential to discuss in detail about the petitioner’s background. Often, clients forget to mention some facts about their life that can be useful for the case, for example, their experience of working as a pilot for international organizations (Red Cross, etc.), participation in rescue activities (firefighting, evacuation of people), work for medical services (transportation of organs), transportation of governmental officials, etc. All these facts can help in proving the petitioner’s case.

Generally, when we work with foreign airline pilots and/or flight instructors, we are looking for the following documents:

• A detailed CV
• Diploma in Education and its Evaluation
• Pilot/instructor/examiner licenses
• Log Book
• Proof of completion of numerous trainings, professional development, and proof of payment for training
• Confirmation of membership in professional associations
• Contracts with employers for the last 5 years
• Awards – from public and private companies
• Letters of recommendation from peers and other industry experts
• Accident-free flight certificates
• Any other documents that will be useful based on the above requirements

Often, attorneys preparing an EB-2NIW visa petition build their argument based on the pilot shortage problem in the United States. In our opinion, this is a rather complicated path that leads to a Request for Evidence from USCIS. Typically, such a request will contain the following important and very difficult-to-answer question: “How can one pilot or instructor solve the pilot shortage in the U.S.?”

Although this question can be answered with reasoned arguments, the USCIS will most often disagree with the reasoning. Therefore, we try to base our arguments not only on the problem of the shortage of pilots or instructors in the U.S. but also on identifying some other urgent problem for the U.S., which, based on the pilot’s background, he or she could help to solve.

Another serious problem is the element of unpredictability. Often, a petitioner with a weaker evidence base will get a petition approved in a few days, while someone with really strong evidence will get rejected. Unfortunately, we have concluded that success also depends very much on the kind of officer who will review the petition and their personal views on the problem presented.

Currently, the EB-2NIW visa petition adjudication takes 4 to 12 months for standard filing and 45 days if filed with a premium processing request. Premium processing requires the petitioner to pay an additional $2805 government fee.

Unfortunately, approval of an EB-2NIW petition does not mean that the petitioner can immediately move to the U.S. and begin working. This pilot visa category is currently in retrogression, meaning that more people have applied for this category than are available for issuance. A petitioner with an approved petition is then forced to wait until a visa is available for them. As of January 2024, the wait is approximately 8-14 months.

Once the visa becomes available, the approved petition is forwarded to the consulate of the country where the applicant resides for further processing, scheduling an interview, and issuing an immigrant visa. Once these steps are completed and the immigrant visa is finally approved at the consulate, the petitioner can move to the United States.

Option 2: EB-2 – immigrant visa for petitioners holding an advanced degree or its equivalent or those who have exceptional ability

The EB-2 visa is similar to the EB-2NIW, but there are still significant differences. First, this type of pilot visa requires an employer to file a petition for the petitioner and requires approval from the U.S. Department of Labor. These two requirements make the preparation of the petition much heavier, but there is an upside – for EB-2, you do not need to prove U.S. national interest – see Steps 2, 3, and 4 of the EB-2NIW analysis above.

As with the EB-2NIW, the applicant must meet a certain level of education – a college degree above the bachelor’s level or a bachelor’s degree plus five years of progressive experience in the education profession. In some cases, it may be possible to show that the petitioner meets this requirement if they can show that they have exceptional ability in their field. This part is identical to the EB-2NIW.

At this point, it takes about two years to process an EB-2 visa petition. The first step is to wait 7-12 months for approval from the Department of Labor, and the second step is to get approval from the USCIS (4-12 months for standard filing and 15 days if filed with a premium processing request). Premium processing requires the petitioner to pay an additional $2805 government fee.

Unfortunately, approval of an EB-2 petition does not mean that the petitioner can immediately move to the U.S. and begin working. This visa category is currently in retrogression, meaning that more people have applied for this category than are available for issuance. The petitioner with an approved petition is then forced to wait until a visa is available for them. As of January 2024, the wait is approximately 8-14 months.

Once the pilot visa becomes available, the approved petition is forwarded to the consulate of the country where the petitioner resides for further processing, scheduling an interview, and issuing an immigrant visa. Once these steps are completed and the immigrant visa is finally approved at the consulate, the petitioner can move to the United States.

Option 3 and 4: O-1 – nonimmigrant visa for individuals with extraordinary ability or achievement

or

EB-1A – immigrant visa for individuals with extraordinary ability or achievement

These visa categories are very similar to each other. Still, the important difference is that O-1 is a non-immigrant visa, i.e. it is not a residence in the U.S., but only gives a right to live and work in the U.S., and EB-1A is an immigrant visa, i.e. it leads to a Green Card. It is important to note that the O-1 visa requires a U.S. employer to apply for the pilot visa. The EB-1A visa does not require an employer.

О-1

EB-1A

Diclaimer

No Legal Advice Intended: This article includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended and should not be taken as legal advice on any particular set of facts or circumstances. You should contact Leone Zhgun, P.A., for advice on specific legal problems.

Artem Zhgun

Leone Zhgun, P.A.
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201 S. Biscayne Blvd.,
Suite 800, Miami, FL 33131, USA

Email for consultation: info@leonezhgun.com

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