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.
Petitioner initially proposed to provide HVAC preventative maintenance, design, and repair services through his own startup company (T-), but after an RFE, changed course to full-time employment as a mechanical engineer in the oil drilling industry with his former employer (H-).
Field: mechanical engineering / HVAC · Read the decision (uscis.gov)
EB-2 threshold — addressed
The Director did not decide the underlying EB-2 classification; the AAO found, based on his bachelor's degree and letters showing progressive post-baccalaureate experience, that Petitioner qualifies as the equivalent of an advanced degree professional under 8 C.F.R. 204.5(k)(3)(i)(B).
Prong 2 — well positionednot established · dispositive
“we conclude that the Petitioner has materially changed the nature of the proposed endeavor that he intends to pursue”
“We conclude the Petitioner's RFE response presented a new set of facts regarding his proposed endeavor, which is material to eligibility for a national interest waiver.”
“Because the Petitioner has not provided consistent information regarding his proposed endeavor, we cannot conclude that he meets the second prong”
“Here, the Petitioner's pursuit of employment in the oil drilling industry presented after the filing date cannot retroactively establish eligibility.”
AAO decision text
How the evidence was treated
- resume experience · credited
- degree · credited
- business plan · discounted
“it appears the Petitioner sought to address the Director's initial concerns... but in so doing, he has significantly changed his proposed endeavor”
AAO decision text - recommendation letter · discounted
“the Petitioner's pursuit of employment in the oil drilling industry presented after the filing date cannot retroactively establish eligibility”
AAO decision text
Where this case turned
- Material change of endeavor · p2 — the endeavor described on appeal is not the one filed
Notable
AAO found Petitioner qualified for the underlying EB-2 classification (advanced-degree equivalent) but dismissed the NIW appeal solely because Petitioner materially changed his proposed endeavor between filing and his RFE response (from an HVAC startup to oil-drilling employment). This was treated as dispositive under prong 2 alone; the AAO noted the change also negatively impacted prongs 1 and 3 but declined to analyze them further, citing INS v. Bagamasbad and Matter of L-A-C- for judicial economy.
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
- Matter of Izummi
- Matter of Katigbak
- Matter of L-A-C-
- Section 291 of the Act
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