NIW Bearings
dismissedJUL272022_02B52032022-07-27 · 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.

The Petitioner, a software developer, initially proposed working for a U.S. company in that role, but later proposed to start his own IT consulting firm serving large companies and government agencies.

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

EB-2 threshold — addressed

Petitioner established eligibility as a member of the professions with an advanced degree or equivalent, based on Brazilian diplomas, transcripts, and progressive work experience.

Prong 1 — national importancenot established

“the record is absent of documentary evidence to show that the proposed business has significant potential to do so”
“the record lacks evidence that[ ]is an economically depressed area, the example provided in Dhanasar”
“The evidence does not show that the proposed employment of eight IT workers would have broader implications in the IT industry.”
“we agree with the Director that the Petitioner has not established that his proposed endeavor of starting an IT consulting firm is of national importance”

AAO decision text

Prong 2 — well positionednot established

“there is no evidence that he has previously attempted or succeeded in starting a new business”
“the record lacks documentation of any progress towards achieving this endeavor, which might include the establishment of the business as a legal entity, registration of the business, securing any necessary funding”
“there is no indication in the record that the Petitioner has successfully gathered interest from potential investors or customers”
“the record does not show that the Petitioner has made any preparations for starting his new business beyond writing a business plan”

AAO decision text

Prong 3 — balance of factorsnot established

“the purpose of the labor certification process is to identify jobs where there are no qualified, willing and available U.S. workers”
“he has not demonstrated that there is an urgent need for his services”

AAO decision text

How the evidence was treated

  • business plan · discounted
    “the record is absent of documentary evidence to show that the proposed business has significant potential to do so”
    AAO decision text
  • resume experience · discounted
    “there is no evidence that he has previously attempted or succeeded in starting a new business”
    AAO decision text
  • recommendation letter · discounted
    “the bulk of the proposed endeavor focuses not on the Petitioner's own software development activities, but upon his creation of a new company”
    AAO decision text
  • media · discounted
    “the first prong of the Dhanasar framework focuses on the Petitioner's specific proposed endeavor”
    AAO decision text
  • degree · credited

Where this case turned

  • Economic claims unsupported · p1 — job/revenue projections with no corroborating basis
  • 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 · p1 — argues a labor shortage — the labor-certification question, not Dhanasar
  • Business plan speculative · p2 — projections without a documented basis or steps
  • No progress evidence · p2 — no documented movement toward the endeavor since filing
  • Record of success insufficient · p2 — a claimed track record the documents do not establish
  • 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

The Director had found substantial merit and prong 2 (well-positioned) satisfied, but the AAO reversed the well-positioned finding on appeal, disagreeing with the Director's favorable determination on that prong, ultimately finding both prong 1 and prong 2 failed despite the Director only having found prong 1 and prong 3 deficient.

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. 204.5(k)(2)
  • INA 203(b)(2)
  • INA 291

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