NIW Bearings
dismissedNOV052024_01B52032024-11-05 · combined · 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, a consultant on a neuroscience research project, proposed to separately build and commercialize a cyber-physical system/device using cortical biomarkers to remotely assess consciousness in comatose or brain-injured patients as a self-employed entrepreneur.

Field: cyber-physical systems / biomedical technology · Read the decision (uscis.gov)

Prong 2 — well positionednot established · dispositive

“the Petitioner has not sufficiently demonstrated a record of success or progress in advancing his proposed endeavor”
“The Petitioner also has not provided evidence that he has secured investments in the proposed endeavor or demonstrated his ability to secure fonding for his endeavor.”
“a degree is not a sufficient basis to determine that he is well positioned to advance his proposed endeavor.”
“the Director decision specifically concluding that the Petitioner had not submitted sufficient evidence to support the plan he provided for his entrepreneurial business endeavor”
“the record does not show how the Petitioner will be able to advance the proposed endeavor as an entrepreneur if the technology on which his endeavor relies is in fact owned by the medical college”

AAO decision text

How the evidence was treated

  • recommendation letter · discounted
    “does not reflect an interest in the Petitioner's proposed endeavor”
    AAO decision text
  • business plan · discounted
    “had not submitted sufficient evidence to support the plan he provided for his entrepreneurial business endeavor”
    AAO decision text
  • funding · discounted
    “does not show that the funding D-P-C- obtained for her research would be used to advance or further the Petitioner's entrepreneurial endeavor”
    AAO decision text
  • patents · discounted
    “also post-dates the filing of the NIW petition and therefore does not establish the Petitioner's eligibility at the time of filing”
    AAO decision text
  • degree · discounted
    “a degree is not a sufficient basis to determine that he is well positioned to advance his proposed endeavor”
    AAO decision text
All 7 evidence items
  • resume experience · discounted
    “did not reflect his record of success in neuroscience research related to his specific endeavor”
    AAO decision text
  • motion resubmission · discounted
    “does not establish the Petitioner's eligibility at the time of filing in January 2021”
    AAO decision text

Where this case turned

  • 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
  • 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

The AAO discusses entrepreneur-specific prong-two evidentiary factors from USCIS Policy Manual F.5(D)(4) at length, and notes an invention-disclosure agreement assigning IP rights to the petitioner's employer as undermining his claimed entrepreneurial control over the endeavor's technology.

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. 103.5
  • Matter of Katigbak

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