NIW Bearings
dismissedMAY142024_07B52032024-05-14 · 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 Petitioner proposed to develop a retail shoe store business, opening ten stores in SBA HUBZones across Illinois, Wisconsin, California, and Florida, selling footwear to various demographics.

Field: retail footwear / entrepreneurship · Read the decision (uscis.gov)

EB-2 threshold — not met

AAO withdrew the Director's finding of EB-2 eligibility, citing unresolved inconsistencies in documentation of five years of progressive post-baccalaureate work experience (conflicting lease contracts and business-start dates); did not require an RFE because the NIW prongs were dispositive.

Prong 1 — national importancenot established

“these relate more to the substantiality of the proposed endeavor's merit than its national importance”
“the record does not adequately describe how the Petitioner's retail shoe store or stores would broadly implicate matters of supply chain security and development to a level of national importance”
“it is not clear from the record how this job creation for the proposed endeavor itself would have a substantial prospective positive economic effect commensurate with national importance”
“the fact that the Petitioner' proposed endeavor may be in a HUBZone is wholly irrelevant to whether the Petitioner's endeavor rose to a level of national importance”

AAO decision text

Prong 2 — well positionednot established

“The recommendation letters the Petitioner submitted are not material, relevant, or probative evidence in the record of interest or support in the endeavor the Petitioner proposed”
“it is not evident from the degree certificate how a petitioner with a baccalaureate level education of arts in law is well positioned to advance an entrepreneurial endeavor”
“demonstration of an intent to invest, by itself is not sufficient to automatically demonstrate how well positioned the Petitioner is to advance their proposed endeavor”
“the Petitioner's submission of an Illinois trademark or service mark application and corporate tax returns does not meaningfully reflect progress”

AAO decision text

How the evidence was treated

  • recommendation letter · discounted
    “The recommendation letters the Petitioner submitted are not material, relevant, or probative evidence”
    AAO decision text
  • business plan · discounted
    “The business plan instead only placed heavy emphasis on what the Petitioner had done in their past”
    AAO decision text
  • funding · discounted
    “demonstration of an intent to invest, by itself is not sufficient to automatically demonstrate how well positioned”
    AAO decision text
  • degree · discounted
    “it is not evident from the degree certificate how a petitioner ... is well positioned to advance an entrepreneurial endeavor”
    AAO decision text
  • resume experience · discounted
    “the documentation of progressively responsible work experience contained in the record labors under inconsistencies”
    AAO decision text
All 6 evidence items
  • media · discounted
    “these relate more to the substantiality of the proposed endeavor's merit than its national importance”
    AAO decision text

Where this case turned

  • Business plan speculative · p1 — projections without a documented basis or steps
  • 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
  • Business plan speculative · p2 — projections without a documented basis or steps
  • Education alone insufficient · p2 — degrees offered as positioning — credentials are not a track record
  • Funding absent · p2 — no documented funding or resources behind the plan
  • 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
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Notable

AAO rejected the Petitioner's HUBZone-based national importance argument by noting HUBZone federal contract set-asides require majority U.S.-citizen ownership, which was irrelevant to the Petitioner's wholly-owned foreign-national business. AAO also found the Petitioner's advisory expert letter internally inconsistent with the business plan's own revenue projections ($17.45M vs. $5.19M). A footnote explains AAO declined to issue an RFE on threshold EB-2 eligibility because the NIW prongs were dispositive of the appeal.

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. 103.3
  • 8 C.F.R. 204.5(g)(1)
  • 8 C.F.R. 204.5(k)(2)
  • Flores v. Garland
  • Matter of Ho
  • Matter of L-A-C-
  • Matter of Y-B-

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