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 graphical design entrepreneur, sought classification as an individual of exceptional ability and a national interest waiver of the job offer requirement.
Field: graphical design · Read the decision (uscis.gov)
EB-2 threshold — not met
The Director found the Petitioner met three of the six exceptional-ability regulatory criteria but, in a final merits determination, found the totality of evidence did not show a degree of expertise significantly above that ordinarily encountered in the field. The Petitioner mistakenly briefed only the criteria-counting step and never contested the final merits determination, so the AAO deemed that dispositive ground waived, abandoned, and forfeited, leaving the Director's finding undisturbed.
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Notable
The AAO dismissed the appeal on two independent procedural grounds rather than reaching the substantive Dhanasar/exceptional-ability merits: (1) the appeal was untimely filed (77 days after denial, following a rejected Form I-290B and the Petitioner's request for nunc pro tunc treatment, which the AAO declined to grant), and (2) the Petitioner waived the dispositive final merits determination issue by failing to brief it, addressing only the criteria-counting step. The AAO expressly declined to reach the Petitioner's remaining arguments, including the Dhanasar prongs, citing Patel v. Garland and Matter of Chen for the proposition that agencies need not make advisory findings on unnecessary issues.
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. 204.5(k)(3)(ii)
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