NIW Bearings
dismissedJUN252021_02B52032021-06-25 · appeal · Nebraska 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 Beneficiary, sole owner/employee of her own LLC, proposed to operate an agricultural import/export, wholesale, and retail business, including organic plant shops and farmers' market participation.

Field: agricultural retail, import/export, and wholesale business · Read the decision (uscis.gov)

EB-2 threshold — not met

The Petitioner did not establish the Beneficiary met at least three of the six exceptional-ability criteria: academic record was unclear/uncertified in translation, employer letters did not show ten years full-time employer experience, the shop license was not a professional license, salary evidence was vague and uncorroborated, association membership had lapsed, and the award and reference letters were conclusory and uncorroborated.

Prong 2 — well positionednot established

“the content is theoretical and vague, containing descriptions of ideas with little apparent thought as to how the ideas might be accomplished”
“Without sufficient evidence demonstrating the means or financial support to undertake the numerous proposed projects, the Petitioner has not shown that its plan for future activities renders the Beneficiary well positioned”
“Generalized conclusory statements that do not identify specific contributions or their impact in the field have little probative value.”
“the majority of the letters do not clearly describe how the authors know the Beneficiary”
“the business plan does not address the evidentiary concerns outlined in the Director's decision”

AAO decision text

Prong 3 — balance of factorsnot established

“the Petitioner did not address how the Beneficiary's self-employment would affect U.S. workers”
“the Petitioner does not sufficiently explain why this is so”
“the Petitioner claims that the endeavor will create 1,600+ jobs but has not substantiated this claim with sufficient specific information”

AAO decision text

How the evidence was treated

  • recommendation letter · discounted
    “Generalized conclusory statements that do not identify specific contributions or their impact in the field have little probative value.”
    AAO decision text
  • business plan · discounted
    “the business plan does not address the evidentiary concerns outlined in the Director's decision”
    AAO decision text
  • degree · discounted
    “the record does not credibly establish the Beneficiary's academic record”
    AAO decision text
  • certification membership · discounted
    “the Petitioner has not satisfied this criterion”
    AAO decision text
  • awards · discounted
    “the Petitioner presented little evidence showing that this award is recognized beyond the presenting institution”
    AAO decision text
All 6 evidence items
  • resume experience · discounted
    “none of the letters establishes that the Beneficiary's experience was full-time”
    AAO decision text

Where this case turned

  • Business plan speculative · p2 — projections without a documented basis or steps
  • Letters conclusory · p2 — letters praise skills in general terms without tracing specific impact
  • Letters not independent · p2 — letters come from employers and close collaborators, not independent experts
  • 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
  • Derivative of Prong 1/2 failure · p3 — prong three fails only because prongs one or two did — no independent ground
  • 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

Because the Petitioner failed to establish exceptional ability at the threshold, the AAO deemed the NIW issue moot and declined to reach prong 1, but nonetheless briefly addressed prongs 2 and 3 since the Director had ruled on them and the Petitioner appealed those findings. The decision also flags credibility concerns, including uncertified translations and that one reference letter's author appeared, per government records, to be the Beneficiary's daughter.

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)(3)
  • Matter of L-A-C-
  • Matter of Otiende
  • Matter of V-K-
  • Poursina v. USCIS

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