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.
The Petitioner, a Brazilian construction/real-estate businessman, sought to serve as CEO of a construction company engaged in real estate and urban development entrepreneurship in the United States, based on claimed exceptional ability.
Field: real estate and urban development entrepreneurship/construction business · Read the decision (uscis.gov)
EB-2 threshold — not met
AAO found Petitioner met at most 2 (and ultimately fewer than 3) of the six exceptional-ability criteria at 8 C.F.R. 204.5(k)(3)(ii): his accounting credential was not shown related to his claimed field, his construction permits/certificates did not qualify as licensure/certification for a profession, his salary/remuneration evidence did not demonstrate exceptional ability, and his trade-association membership was not a qualifying professional association. Because fewer than three criteria were met, the AAO did not conduct a final merits determination or reach the Dhanasar national-interest-waiver analysis.
How the evidence was treated
- degree · discounted
“does not sufficiently describe how accounting is related to the Petitioner's claimed field of exceptional ability”
AAO decision text - certification membership · discounted
“we cannot conclude the Petitioner has a license to practice the profession or certification for a particular profession or occupation”
AAO decision text - certification membership · discounted
“is not a professional association as that term is contemplated in the regulations”
AAO decision text - other · discounted
“we cannot evaluate from information in the record whether the Petitioner's salary or remuneration demonstrated his exceptional ability”
AAO decision text
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Notable
The decision's header identifies the underlying filing as a Form I-129 H-1B nonimmigrant petition, but the entire substantive analysis concerns EB-2 exceptional-ability classification and a national interest waiver under section 203(b)(2) and Matter of Dhanasar, an apparent clerical/form-type mismatch in the caption. Because the Petitioner failed to meet at least three of the six exceptional-ability criteria at the threshold stage, the AAO expressly declined to reach the Dhanasar national-interest-waiver prongs, citing INS v. Bagamasbad and Matter of L-A-C-.
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
- 8 C.F.R. 204.5(k)(2)
- 8 C.F.R. 204.5(k)(3)(ii)
- 8 C.F.R. 204.5(k)(3)(iii)
- Flores v. Garland
- Matter of L-A-C-
- Matter of O-R-E-
- Matter of R-A-M-
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