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 freelance software developer, sought to establish and run his own company to distribute an AI-based system he described as designed to detect malware for cybersecurity purposes.
Field: software and web development / AI cybersecurity · Read the decision (uscis.gov)
EB-2 threshold — not met
The Petitioner did not have an advanced degree and could not show five years of progressive post-baccalaureate experience to equate his bachelor's degree to a master's. He also failed to satisfy at least three of the six exceptional-ability criteria (certification/license and professional-association membership were not established, and recognition for significant contributions was not shown), and separately failed the final merits determination for exceptional ability, which he did not contest on appeal.
How the evidence was treated
- degree · credited
- certification membership · discounted
“The Petitioner did not submit any evidence that... is a credentialing authority that licenses or certifies individuals for a particular profession or occupation.”
AAO decision text - recommendation letter · discounted
“The record ... does not indicate that [the product] existed when the Petitioner filed the petition.”
AAO decision text - business plan · discounted
“The Petitioner's intention to develop such software in the future is not a viable basis for a finding of exceptional ability.”
AAO decision text - media · discounted
“The Petitioner has not shown that the project's inclusion in the publication was, itself, recognition that the project amounted to a significant contribution to the industry or field.”
AAO decision text
All 6 evidence items
- awards · discounted
“The certificate does not identify any specific achievement or contribution to the industry or field.”
AAO decision text
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Notable
The AAO found the Petitioner ineligible for the underlying EB-2 classification (both advanced-degree and exceptional-ability tracks) and therefore expressly declined to reach the national interest waiver prongs, reserving those arguments under Bagamasbad and Matter of L-A-C-. Much of the exceptional-ability discussion (e.g., speculative future development of the AI product, letters describing it in future tense) mirrors typical NIW prong-2 'business plan speculative' reasoning even though framed as a threshold determination.
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
- 8 C.F.R. 204.5(k)(2)
- 8 C.F.R. 204.5(k)(3)(ii)
- Flores v. Garland
- Kazarian v. USCIS
- Matter of L-A-C-
Cases in adjacent profiles
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- The Petitioner proposed to establish and lead as CEO a cybersecurity and crisis management company in Florida, offering
- The Petitioner proposed to establish and operate an IT consultancy company in Michigan providing cloud migration, cybers