This appeal was not successful at this stage
The AAO dismissed the appeal because the Petitioner failed to establish exceptional ability, finding he met only two of the required three evidentiary criteria (not three as the Director found) and did not show expertise significantly above others in the construction field. The national interest waiver analysis was not reached.
The Petitioner, a construction manager and entrepreneur from Brazil with over 20 years of experience, sought EB-2 classification as an individual of exceptional ability with a national interest waiver. The Texas Service Center Director denied the petition, finding that while three criteria were met, the evidence did not show exceptional ability. On appeal, the AAO agreed with the denial but additionally reversed the Director's finding on the membership criterion, concluding the Petitioner's Professional Identity Card as a Telecommunications Technician did not qualify because it was issued by a body not governed by the cited Brazilian decree and the role was not shown to require a U.S. bachelor's degree equivalent. The AAO conducted a final merits determination and found the expert and recommendation letters insufficient to show expertise significantly above that ordinarily found in construction management. The national interest waiver analysis was not reached.
What failed: The Petitioner's membership in a professional association was rejected because the issuing body and the Telecommunications Technician designation were not connected to the cited Brazilian professional decree. Expert opinion and recommendation letters failed because they did not specifically explain how the Petitioner's expertise exceeded the ordinary level in the construction field. General assertions of 20+ years of experience and educational credentials were insufficient to establish exceptional ability.
Takeaway: For EB-2 exceptional ability petitions, letters of support must directly compare the petitioner's expertise to others in the field and explain why it is significantly above average—general praise is not enough. Petitioners relying on foreign professional credentials must clearly document the regulatory framework governing their designation and its equivalence to U.S. degree requirements.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-2-NIW criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The Petitioner's membership in a professional association was rejected because the issuing body and the Telecommunications Technician designation were not connected to the cited Brazilian professional decree
- Expert opinion and recommendation letters failed because they did not specifically explain how the Petitioner's expertise exceeded the ordinary level in the construction field
- General assertions of 20+ years of experience and educational credentials were insufficient to establish exceptional ability.
Official academic records (diploma for Telecommunications High School Level Technician course)
License to practice the profession
Over 20 years of experience in construction management and telecommunications
Professional Identity Card as a Telecommunications Technician — did not establish membership in a qualifying professional association under the regulation
Expert opinion letter and recommendation letters — insufficient discussion of how Petitioner's expertise is significantly above others in the field
Business plan and income information for Petitioner's business — did not establish exceptional ability
Director incorrectly found the membership in professional associations criterion (8 C.F.R. § 204.5(k)(3)(ii)(E)) was met; AAO reversed this finding because the Petitioner's Professional Identity Card was issued by a body not covered by the cited Decree, and the Telecommunications Technician designation was not shown to require a U.S. bachelor's degree equivalent.
Completed
I-140 filed
Construction manager and entrepreneur with background in construction and telecommunications
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2025-04-28
AAO decision — Dismissed
The AAO dismissed the appeal because the Petitioner failed to establish exceptional ability, finding he met only two of the required three evidentiary criteria (not three as the Director found) and did not show expertise significantly above others in the construction field. The national interest waiver analysis was not reached.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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