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 business administrator and entrepreneur, sought to open and direct the operations of an automotive parts company in Massachusetts as its commercial director and manager.
Field: automotive parts business administration · Read the decision (uscis.gov)
EB-2 threshold — not met
Although the Petitioner met at least three of the six exceptional-ability evidentiary criteria, the Director found in the final merits determination that the record did not show a degree of expertise significantly above that ordinarily encountered, and the Petitioner failed to contest this finding on appeal, resulting in waiver of the issue.
How the evidence was treated
- certification membership · discounted
“did not establish by a preponderance of the evidence that he has achieved a degree of expertise that is significantly above that ordinarily encountered”
AAO decision text - resume experience · discounted
“meeting the minimum requirements by providing at least three types of initial evidence does not, in itself, establish that the individual meets the requirements”
AAO decision text - business plan · discounted
“did not establish that the Petitioner's proposed endeavor... has national importance, that he is well positioned to advance his endeavor”
AAO decision text - other · discounted
“did not establish that the Petitioner's proposed endeavor... has national importance”
AAO decision text
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Notable
AAO expressly declined to reach the Dhanasar national-interest-waiver prongs because the threshold exceptional-ability failure was dispositive, though it noted in a footnote that the Director had found substantial merit but not national importance, well-positioning, or overall benefit. The Petitioner's failure to contest the exceptional-ability finding on appeal was treated as a waiver of that issue under Matter of O-R-E-.
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)
- Chen v. INS
- Flores v. Garland
- Matter of O-R-E-
- Matter of R-A-M-
- USCIS Policy Manual F.5(B)(2)
What this case teaches
Analyst reading of the decision text.
Petitioner failed to establish exceptional ability under 8 C.F.R. 204.5(k)(3)(ii) final merits determination and waived the issue by not contesting it on appeal, making it dispositive without reaching Dhanasar prongs.
Always affirmatively contest every adverse finding on appeal, including threshold EB-2 classification issues, or risk waiver and automatic dismissal regardless of NIW merits.
moderate
economic_job_creation · economic_growth_generic · field_advancement
person_focused
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