NIW Bearings
dismissedNOV182022_03B52032022-11-18 · 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.

The Petitioner proposed to serve as administrator of three childcare/pre-school franchises in Florida owned by a company connected to her husband, handling day-to-day operations such as marketing, facilities maintenance, and budgeting through her own company.

Field: business administration / early childhood education franchise management · Read the decision (uscis.gov)

EB-2 threshold — addressed

AAO agreed she qualifies as a member of the professions holding an advanced degree (bachelor's plus five years progressive experience).

Prong 1 — national importancenot established

“the Petitioner has not articulated or presented evidence to show that her administration of three child care facilities in the area will have national or even global implications within the field of early childhood education”
“the Petitioner has not shown that her specific proposed endeavor in administering those facilities will employ anyone other than herself”
“Thus the record does not support the substantial merit of her proposed endeavor in the field of education”

AAO decision text

Prong 2 — well positionednot established

“This agreement between and the Petitioner therefore represents not the interest of clients, investors, or other relevant parties in her endeavor, but her own self interest”
“she does not have experience in education administration, let alone a record of success in this area”
“we conclude that the Petitioner has not established that she is well positioned to advance her endeavor”

AAO decision text

Prong 3 — balance of factorsnot established

“She has therefore not shown that there is a strong national interest in granting her a waiver of the job offer requirement”
“the Petitioner also has not demonstrated that there is an urgent need for her services such that a waiver of the job offer requirement is warranted”
“the purpose of the labor certification process is to test the labor market to ensure that there are no qualified, willing, and available U.S. workers”

AAO decision text

How the evidence was treated

  • recommendation letter · discounted
    “insufficient to establish... a record of past achievements beyond the normal expectations of an administrator and entrepreneur”
    AAO decision text
  • business plan · discounted
    “represents not the interest of clients, investors, or other relevant parties in her endeavor, but her own self interest”
    AAO decision text
  • media · discounted
    “the Petitioner has not articulated or presented evidence to show that her administration...will have national or even global implications”
    AAO decision text
  • resume experience · discounted
    “she does not have experience in education administration, let alone a record of success in this area”
    AAO decision text
  • degree · credited

Where this case turned

  • Employer-specific benefit · p1 — "work furthers my company's product" — value accrues to one firm
  • Field importance conflated with endeavor · p1 — argues the field matters, not the specific endeavor
  • Local, not national scope · p1 — impact confined to clients / a region
  • Letters not independent · p2 — letters come from employers and close collaborators, not independent experts
  • Record of success insufficient · p2 — a claimed track record the documents do not establish
  • Derivative of Prong 1/2 failure · p3 — prong three fails only because prongs one or two did — no independent ground
  • Urgency not established · p3 — no reason shown why the benefit cannot wait for labour certification
  • U.S. worker availability · p3 — the impracticality of a labour-market test was asserted, not established
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Notable

The Petitioner's proposed employer was a company partially owned by her husband and created for EB-5 investor purposes, and a key supporting letter lacked a certified English translation; the AAO treated the arrangement as evidence of self-interest rather than independent third-party interest.

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)(3)
  • 8 C.F.R. 204.5(k)(2)
  • INA 203(b)(2)
  • INA 291

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