Washington Lawyer - November/December 2022 - 23

FEATURE
Recently, the Metropolitan State University of Denver was authorized
by the FAA to offer students the opportunity to earn a restricted airline
transport pilot certificate with only 1,000 hours of flying time. Going
even further, Republic Airways, a regional airline, is asking the FAA to
lower to 750 the minimum number of hours required to become an
airline pilot.1
That may sound like a reasonable request, but it brings up
the concern of whether reducing the required pilot training hours will
put American lives at stake or, worse, lead to another tragedy.
There is no silver bullet to the pilot shortage problem, but there is a partial
remedy that few people are talking about: foreign pilots with FAA licenses.
AN UNTAPPED RESOURCE
Because the recovery of the U.S. airline industry remains ahead of most
other countries, many foreign pilots are still available for hire.2
to the 2021 FAA Active Civil Airmen Statistics, 36,396 pilots and 3,096
flight instructors living outside U.S. territory possess an FAA license.
These numbers do not include experienced pilots who are qualified to
convert their training and foreign flight license to an FAA license.
If the United States aims to benefit from this untapped talent, the U.S.
Citizenship and Immigration Services first needs to establish clearer
guidelines with respect to immigrant categories for pilots. This is particularly
true when it comes to the employment-based immigration second
preference visa category (EB-2).
To be eligible for an EB-2 visa, an applicant must be sought by an
employer in the United States and hold an advanced degree or have
exceptional ability in the sciences, arts, or business. Applicants may seek
a national interest waiver (NIW)3
of the employer requirement if the petitioner
can prove that the proposed endeavor is in the national interest
- simply put, the person's future contributions to the United States
merit waiving their labor certification.
To determine NIW eligibility, the Administrative Appeals Office (AAO) in
Matter of Dhanasar (2016)4
set forth a three-prong test. First, the foreign
national's proposed endeavor has both substantial merit and national
importance. Second, the foreign national is well-positioned to advance
the proposed endeavor. Third, on balance, it would be beneficial to the
United States to waive the requirements of a job offer and thus of a labor
certification. Compared to the old framework in Matter of New York State
Department of Transportation (1998),5
Dhanasar provides more clarity and
flexibility because it does not require a petitioner to prove immediate or
quantifiable economic impact and modified the transportation department's
language from " national in scope " to " national importance " to
avoid overemphasis on the geographic breadth of the work.
Regarding national importance, Dhanasar specifically requires an
endeavor to have potential prospective impact. One of the considerations
in judging this impact is whether the petitioner's endeavor
has substantial positive economic effects. In 2021 the AAO addressed
the issue of whether a petitioner could establish national importance
through proposed work as a pilot in two nonprecedent appeal decisions.
Both appeals were dismissed with different reasonings.
In a June 15, 2021, decision,6
the AAO reasoned that " [t]he Petitioner does
not establish that [he] trains enough new pilots to have a nationally significant
effect on industry staffing trends. " In plain meaning, the AAO decided
that gaining a flight instructor for new pilots was not of great importance
to the nation. However, upon a closer look at footnote 6 of this AAO
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decision, the petitioner's proposed endeavor failed to meet the national
importance element because his U.S. flight training program mainly trains
foreign pilots who subsequently return to their home countries. In other
words, the petitioner was denied because the AAO concluded that pilots
like him took away training spots from prospective U.S. pilots.
But that reasoning leaves open the possibility of the AAO reaching
a different conclusion if a future petitioner's projects are reserved for
American pilots or foreign pilots flying for a U.S. airline. The AAO did not
arbitrarily dismiss the fact that being a pilot can have national importance,
so long as the proposed endeavor is reserved for U.S. employment
and training.
In a decision issued on September 14, 2021,7
According
the AAO wondered how
one pilot could substantively improve a national shortage. The AAO
further reasoned that although the petitioner's work may impact individual
students, pilots, employers, or airlines, he did not adequately
explain or substantiate the claims. The AAO did not outright reject the
potentially significant impact of a pilot, but it did need more explanation
on why being a pilot might rise to the level of national importance.
Here, the AAO overlooked the totality of the broad impact for having
more foreign pilots in the United States. The unnecessarily narrow interpretation
of this element is troublesome because Dhanasar revised the
framework in NYSDOT to avoid an overly narrow and unclear interpretation
of the NIW requirements.
AVIATION'S BROADER IMPACTS
So, let's consider the potential totality of the economic impact from
having more foreign pilots in the United States. A robust aviation
industry is essential to U.S. economic recovery, but the current pilot
shortage will limit the industry's growth. According to a 2020 report by
the FAA, civil aviation activity directly or indirectly contributed more
than 5.2 percent to the U.S. gross domestic product; it also generated
$1.8 trillion in total economic activity, supported 10.9 million jobs, and
earned $488.2 billion.8
Recognizing the pilot shortage, the FAA established Aviation Workforce
Development Grants, which Congress approved through the end of
fiscal 2023. " This is a national issue, " Secretary of Transportation Pete
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Washington Lawyer - November/December 2022

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