NIW Bearings
dismissedMAY252022_01B52032022-05-25 · 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.

A physical therapist proposed to provide expert treatment and education to patients and other therapists, and later proposed starting a mobile physical therapy company serving homebound patients in Florida and Utah.

Field: physical therapy · Read the decision (uscis.gov)

EB-2 threshold — not met

Petitioner did not establish exceptional ability; while he met 3 of the 6 evidentiary criteria, the final merits determination found his degree, license, and memberships showed only minimum field qualifications, and his single publication's citation record and reference letters were insufficiently probative of expertise significantly above that ordinarily encountered in the field.

Prong 1 — national importancenot established

“at no stage of these proceedings has he presented more than a very brief description of the type of research he would conduct”
“the record does not indicate that these activities would impact the field of physical therapy on a broader level, beyond the impact it would have on the Petitioner's individual patients”
“the Petitioner has not shown that [the company] would have a significant potential to employ U.S. workers or would have other substantial positive economic effects”
“he has not submitted evidence which supports his assertion that his specific proposed endeavor, the provision of care to individual patients, will rise to the level of national importance”

AAO decision text

How the evidence was treated

  • degree · discounted
    “show that he possesses the minimum qualifications to perform in his field”
    AAO decision text
  • certification membership · discounted
    “does not demonstrate that the organizations have any membership requirements above those commonly found in physical therapists”
    AAO decision text
  • citations publications · discounted
    “the record does not include evidence showing the significance of this level or rate of citation to the paper”
    AAO decision text
  • recommendation letter · discounted
    “does not elaborate on the significance of the research itself or the amount of attention it has received”
    AAO decision text
  • business plan · discounted
    “the Petitioner has not shown that [the company] would have a significant potential to employ U.S. workers or would have other substantial positive economic effects”
    AAO decision text
All 6 evidence items
  • other · ignored
    “the AAO will not accept evidence offered for the first time on appeal”
    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
  • Endeavor too vague · p1 — described as a job role, not a defined undertaking
  • Local, not national scope · p1 — impact confined to clients / a region
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Notable

AAO explicitly declined to consider new appellate evidence (Google Scholar citation count, 2017 faculty research paper) under Matter of Soriano/Obaigbena, but also addressed it in the alternative. Decision rests on two independent alternate bases: failure of exceptional ability threshold and failure of NIW prong 1; prongs 2 and 3 were not reached.

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)
  • 8 C.F.R. 204.5(k)(3)(ii)
  • Section 291 of the Act
  • USCIS Policy Manual F.5(B)(2)

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