NIW Bearings
dismissedSEP282023_09B52032023-09-28 · 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, a civil engineer from Brazil/Colombia, proposed to work as project manager of his own newly-formed Florida civil engineering consulting company, offering construction project management, innovative and eco-friendly building technologies, and consultation to developers and other engineers.

Field: civil engineering · Read the decision (uscis.gov)

EB-2 threshold — addressed

The Director found, and the AAO's record reflects, that the Petitioner qualifies as an advanced degree professional based on his foreign civil engineering degree and progressive experience.

Prong 1 — national importancenot established

“the documentation in the record does not provide insight as to how the Petitioner intends to impact the fields of civil engineering and construction, the economy, or the environment more broadly”
“merely working in the civil engineering and construction fields or starting a civi I engineering services business to support these industries is insufficient to establish the national importance”
“The industry reports and articles submitted do not discuss any projected economic or environmental impacts specifically attributable to the Petitioner's proposed endeavor.”
“the Petitioner has not demonstrated by a preponderance of the evidence that his proposed endeavor is of national importance”
“the Petitioner has not demonstrated that sharing his skills with colleagues rises to the level of having national importance”

AAO decision text

Prong 2 — well positionednot established · dispositive

“the Director found that the record did not support with substantive evidence the Petitioner's claims that he had prior experience as an entrepreneur”
“These unresolved inconsistencies in the record cast doubt on the credibility of the documents submitted.”
“the reliability of the expert opinions is in question since they are based on the Petitioner's uncorroborated assertions”
“the Petitioner did not submit evidence demonstrating the success of his new business as claimed in the business plan dated November 2022”
“Evidence of a business relationship developed after the filing of the petition cannot be used to establish eligibility.”

AAO decision text

How the evidence was treated

  • business plan · discounted
    “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.”
    AAO decision text
  • recommendation letter · discounted
    “the reliability of the expert opinions is in question since they are based on the Petitioner's uncorroborated assertions”
    AAO decision text
  • resume experience · discounted
    “he did not provide evidence to support his claims of owning and operating a civil engineering business from 2016 to 2021”
    AAO decision text
  • degree · credited
  • other · discounted
    “The industry reports and articles submitted do not discuss any projected economic or environmental impacts specifically attributable to the Petitioner's proposed endeavor.”
    AAO decision text

Where this case turned

  • Economic claims unsupported · p1 — job/revenue projections with no corroborating basis
  • Employer-specific benefit · p1 — "work furthers my company's product" — value accrues to one firm
  • Endeavor too vague · p1 — described as a job role, not a defined undertaking
  • Field importance conflated with endeavor · p1 — argues the field matters, not the specific endeavor
  • Occupational shortage argument rejected · p1 — argues a labor shortage — the labor-certification question, not Dhanasar
  • Business plan speculative · p2 — projections without a documented basis or steps
  • Letters conclusory · p2 — letters praise skills in general terms without tracing specific impact
  • Letters not independent · p2 — letters come from employers and close collaborators, not independent experts
  • 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 expressly withdrew the Director's favorable finding on prong 1 (national importance), finding it also unmet, but ultimately rested dismissal solely on prong 2 as dispositive, declining to reach the Petitioner's remaining prong-1 and prong-3 arguments. The decision also relies heavily on credibility findings (contradictory Colombia/Australia residency and business ownership records) to undermine both the Petitioner's claimed experience and supporting expert letters.

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. 103.3
  • 8 C.F.R. 204.5(g)(1)
  • 8 C.F.R. 204.5(k)(2)
  • Matter of Caron Int'l
  • Matter of D-R-
  • Matter of E-M-
  • Matter of Ho
  • Matter of Katigbak
  • Matter of L-A-C-
  • Poursina v. USCIS
  • USCIS Policy Manual F.5(D)(1)

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