NIW Bearings
dismissedOCT292021_01B52032021-10-29 · 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 initially proposed to continue working as a marketing manager for multi-national companies, but in her RFE response she shifted to describing her endeavor as owning and operating two newly formed U.S. businesses serving individuals with autism spectrum disorder through marketing, branding, and business development strategies.

Field: marketing management / business ownership (ASD-related services) · Read the decision (uscis.gov)

EB-2 threshold — addressed

The submitted degree evaluation was found to be templated and unreliable, but the AAO independently consulted the AACRAO EDGE database and concluded the Petitioner's foreign degree is equivalent to a U.S. bachelor's degree; combined with five years of progressive experience, the AAO agreed she qualifies for the underlying advanced-degree professional classification.

Prong 1 — national importancenot established · dispositive

“We conclude that the Petitioner has not identified her specific endeavor.”
“the Petitioner's businesses were not in existence at the time of her initial filing in June 2019”
“Because the Petitioner has not provided consistent information regarding her proposed endeavor, we cannot conclude that she meets either the first or second prong”

AAO decision text

Prong 2 — well positionednot established · dispositive

“we cannot conclude that she meets either the first or second prong, or that she has established eligibility for a national interest waiver”
“A visa petition may not be approved based on speculation of future eligibility or after a petitioner becomes eligible under a new set of facts.”
“a petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements”

AAO decision text

How the evidence was treated

  • degree · discounted
    “we conclude that this evaluation is of little probative value in this matter”
    AAO decision text
  • resume experience · credited
  • certification membership · discounted
    “the record does not reflect that this education rises to the level of any U.S. degree”
    AAO decision text
  • business plan · discounted
    “the Petitioner devoted a significant portion of her plan to providing background on ASD rather than on her marketing plan”
    AAO decision text
  • recommendation letter · discounted
    “two of the Petitioner's four recommendation letters ... discuss the Petitioner's proposed endeavor in terms of treatment for individuals on the autism spectrum rather than in terms of marketing management”
    AAO decision text
All 6 evidence items
  • motion resubmission · discounted
    “the Petitioner relies upon the evidence she previously submitted to assert that the proposed endeavor has not materially changed”
    AAO decision text

Where this case turned

  • Business plan speculative · p1 — projections without a documented basis or steps
  • Endeavor too vague · p1 — described as a job role, not a defined undertaking
  • Business plan speculative · p2 — projections without a documented basis or steps
  • Endeavor too vague · p2 — described as a job role, not a defined undertaking
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Notable

The case turns on a material shift between the initial filing (marketing manager for multi-national companies) and the RFE response (entrepreneur operating newly formed ASD-focused businesses); the AAO treated this as an impermissible material change under Matter of Izummi/Michelin Tire, precluding assessment of prongs 1 and 2 and never reaching prong 3. The AAO also independently used the AACRAO EDGE database to establish degree equivalency after finding the submitted credential evaluation unreliable.

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. 204.5(k)(2)
  • 8 C.F.R. 204.5(k)(3)(ii)
  • INA 203(b)(2)
  • INA 291
  • Matter of Izummi
  • Poursina v. USCIS

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