dismissedJAN182023_01B52032023-01-18 · 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 Brazilian-trained swimming and physical-education instructor sought to continue working as a sports coach and instructor in U.S. schools and clubs, later reframing the endeavor as owning and expanding a swim-instruction business, including a program for students with special needs.

Field: athletic coaching / swimming instruction / physical education · Read the decision (uscis.gov)

EB-2 threshold — addressed

Director found insufficient evidence of five years' progressive post-baccalaureate experience equivalent to a master's degree, but AAO concluded the record as a whole established this by a preponderance of the evidence despite some gaps.

Prong 1 — national importancenot established · dispositive

“A stated intention to seek employment in a range of occupations is not a specific proposed endeavor.”

“The Petitioner did not establish any readily evident benefit beyond a limited number of local students.”

“A proposed endeavor does not have national importance simply because it relates to a national goal.”

“The Petitioner did not establish that this level of expansion and employment constitutes "significant potential to employ U.S. workers or has other substantial positive economic effects"”

“the lack of qualified U.S. applicants would be a factor in favor of approving labor certification, rather than grounds for waiving it.”

“Subsequent material changes to the proposed endeavor cannot retroactively establish eligibility at the time of filing”

AAO decision text

How the evidence was treated

business plan · discounted
“Subsequent material changes to the proposed endeavor cannot retroactively establish eligibility at the time of filing”
AAO decision text
other · discounted
“This objective appears to describe a business consulting firm rather than a swim coaching practice.”
AAO decision text
recommendation letter · discounted
“she does not explain how she would fill both these positions at the same time.”
AAO decision text
resume experience · credited
degree · credited

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
Material change of endeavor · p1 — the endeavor described on appeal is not the one filed
Occupational shortage argument rejected · p1 — argues a labor shortage — the labor-certification question, not Dhanasar

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Notable

AAO found the Petitioner materially changed her proposed endeavor after filing (from seeking employment as a coach/instructor to launching an expanding franchise business), which the Petitioner did not address on appeal though the AAO called it 'of central importance.' The decision also notes conflicting evidence: an appeal letter from a school unable to replace her (used by Petitioner to show demand) actually undercuts the business-ownership narrative, and a footnote observes that inability to find a replacement worker supports labor certification rather than a waiver of it. Prong 2 was not disputed by the Director and was not revisited; Prong 3 was expressly reserved as unnecessary given the Prong 1 failure.

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. 103.2(b)(1)
8 C.F.R. 103.3
INA 203(b)(2)
Matter of E-M-
Matter of Izummi
Matter of L-A-C-
Poursina v. USCIS

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