This appeal was not successful at this stage
The appeal was dismissed because the petitioner failed to satisfy at least three of the six regulatory criteria required for classification as an individual of exceptional ability. She met only two criteria (academic record and membership), falling short of the required minimum of three.
A civil engineer sought an EB-2 National Interest Waiver, claiming exceptional ability in her field. The Nebraska Service Center director denied the petition for failing to meet at least three of the six required evidentiary criteria. On appeal, the AAO agreed that the petitioner satisfied only two criteria — official academic record and professional membership — while the third claimed criterion (recognition for achievements and significant contributions) was not established. The expert opinion letter submitted for that criterion was found insufficient because it lacked specific details about the petitioner's achievements and how they rose to a significant level. Because the minimum evidentiary threshold was not met, the AAO did not proceed to a final merits determination or evaluate the national interest waiver prongs.
What worked: The petitioner successfully demonstrated the official academic record criterion and, on appeal, provided additional evidence establishing the membership criterion.
What failed: The expert opinion letter submitted to support the achievements and significant contributions criterion was too general — it summarized educational background and professional experience but did not identify specific achievements, explain how contributions were significant, or show recognition by peers or professional organizations. The petitioner's appellate brief also failed to specifically identify the claimed contributions or explain how the Director erred.
Takeaway: Expert opinion letters for the achievements and significant contributions criterion must provide concrete, specific details — naming the petitioner's accomplishments, quantifying their impact, and identifying the peers or organizations that recognized them. Vague, general summaries of background and experience will not suffice.
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
- The petitioner successfully demonstrated the official academic record criterion and, on appeal, provided additional evidence establishing the membership criterion.
● Evidence that wasn't enough alone
- The expert opinion letter submitted to support the achievements and significant contributions criterion was too general — it summarized educational background and professional experience but did not identify specific achievements, explain how contributions were significant, or show recognition by peers or professional organizations
- The petitioner's appellate brief also failed to specifically identify the claimed contributions or explain how the Director erred.
Official academic record satisfying 8 C.F.R. § 204.5(k)(3)(ii)(A)
Membership documentation satisfying 8 C.F.R. § 204.5(k)(3)(ii)(E)
Expert opinion letter from a Department of Civil and Environmental Engineering professor, which was found insufficient for the achievements and significant contributions criterion because it lacked specific information about the petitioner's achievements, how her contributions rose to a significant level, and recognition by peers or professional organizations
Completed
I-140 filed
Civil engineer
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-03-07
AAO decision — Dismissed
The appeal was dismissed because the petitioner failed to satisfy at least three of the six regulatory criteria required for classification as an individual of exceptional ability. She met only two criteria (academic record and membership), falling short of the required minimum of three.
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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