NIW Bearings
dismissedAPR152021_03B52032021-04-15 · 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.

A software developer with experience working abroad proposed to continue providing software development and IT services to local companies, organizations, and individuals in the United States, including through his current employment at a large financial services institution.

Field: software development / IT · Read the decision (uscis.gov)

EB-2 threshold — not met

Petitioner met only 2 of the 6 exceptional-ability criteria (degree and membership); certification/license, salary, and recognition/contribution criteria were not satisfied, so the three-criteria threshold was not met.

Prong 1 — national importancenot established · dispositive

“we do not consider the broader implications of a particular field or industry in which an endeavor will be conducted, or the indirect consequences of a petitioner's activity”
“these assertions are not supported by documentary evidence in the record”
“he has not established that he would be engaged in activities that would impact the field of software development more broadly”

AAO decision text

Prong 2 — well positionedestablished

“we disagree with the Director and conclude that the Petitioner has established that he is well positioned to advance his limited proposed endeavor”

AAO decision text

Prong 3 — balance of factorsnot established · dispositive

“the importance of the overall field in which the Petitioner is employed is not a relevant consideration when balancing the national interest”
“the evidence does not support the Petitioner's assertion that the urgent need for his specific services justifies the granting of a waiver to bypass that process”

AAO decision text

How the evidence was treated

  • degree · credited
  • certification membership · discounted
    “the certificates provided by the Petitioner are not licenses to practice his profession, and are not certifications which are required for employment as a software developer”
    AAO decision text
  • resume experience · discounted
    “neither they nor the certificate constitute or describe significant contributions beyond those employers and clients to the broader industry or field of software development”
    AAO decision text
  • other · discounted
    “the Petitioner's salary was shown to be only marginally higher than that of other software developers with similar experience on a national scale”
    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
  • Local, not national scope · p1 — impact confined to clients / a region
  • Occupational shortage argument rejected · p3 — argues a labor shortage — the labor-certification question, not Dhanasar
  • Urgency not established · p3 — no reason shown why the benefit cannot wait for labour certification
  • U.S. worker availability · p3 — the impracticality of a labour-market test was asserted, not established
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Notable

AAO disagreed with the Director on prong 2, finding the petitioner well positioned to advance his endeavor, but still dismissed based on independent failures of prong 1 (national importance) and prong 3 (balance of factors), illustrating that a prong-2 win does not save a petition when prongs 1 and 3 fail. The AAO also treated the underlying exceptional-ability claim and NIW eligibility as two independently fatal grounds.

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(c)
  • 8 C.F.R. 204.5(k)(2)
  • 8 C.F.R. 204.5(k)(3)(ii)
  • INA 203(b)(2)

What this case teaches

Analyst reading of the decision text.

Decisive factor

Petitioner failed to meet 3 of 6 exceptional-ability criteria, and separately failed to show national importance—his endeavor was confined to serving specific employer clients with no documented broader field impact, and failed prong 3's labor-market balancing.

Transferable lesson

Define a discrete endeavor with a plan showing measurable broader impact beyond current employer/clients, supported by documentary evidence, not general field importance or unsubstantiated 'ripple effect' claims.

Endeavor framing

vague

National-importance theory

economic_growth_generic · field_advancement · geographic_or_shortage_area

Evidence targeting

person_focused

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