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, an HVAC and electrical professional, sought to continue work in this field in the United States, later claiming he intended to serve as CEO and chief technical officer of his own HVAC company rather than provide direct installation/maintenance services.
Field: HVAC and electrical services · Read the decision (uscis.gov)
EB-2 threshold — not met
The Director found the Petitioner met at least three of the six exceptional-ability evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) but failed the final merits determination, lacking evidence of expertise significantly above that ordinarily encountered in the field; the AAO affirmed dismissal of the motion to reconsider this finding for lack of legal error.
Prong 1 — national importancenot established
“the Director properly determined that the Petitioner's resubmission of and reliance on his business plan for his company...was not probative because the Petitioner was required to demonstrate eligibility at the time of filing”
“A petitioner may not make material changes to a petition that has already been filed to make a deficient petition conform to USCIS requirements.”
AAO decision text
How the evidence was treated
- business plan · discounted
“was not probative because the Petitioner was required to demonstrate eligibility at the time of filing”
AAO decision text - recommendation letter · discounted
“did not reveal facts that could be considered new under 8 C.F.R. 103.5(a)(2)”
AAO decision text - motion resubmission · discounted
“almost all of the evidence submitted on motion was previously submitted in support of the petition or in response to the Director's request for evidence”
AAO decision text
Where this case turned
- Business plan speculative · p1 — projections without a documented basis or steps
Notable
The AAO's review was procedurally limited to whether the Director correctly dismissed the Petitioner's combined motion to reopen/reconsider, rather than a fresh de novo analysis of the underlying NIW denial; substantive Dhanasar prong 2 and prong 3 issues were never independently analyzed because the Petitioner failed to meet the threshold motion requirements (new facts / legal error) under 8 C.F.R. § 103.5.
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(a)(2)
- 8 C.F.R. 103.5(a)(3)
- 8 C.F.R. 204.5(k)(3)(ii)
- Flores v. Garland
- Matter of Izummi
- Matter of Katigbak
- USCIS Policy Manual F.5(B)(2)
Cases in adjacent profiles
- The Beneficiary proposed to establish an asset investment management and compliance advisory firm in New York offering c
- The Petitioner proposed to develop and commercialize zeolite-based products in the United States, including agricultural
- The Petitioner proposed to operate a medical billing and healthcare revenue cycle management firm in the United States,
- 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