This appeal was not successful at this stage
The AAO dismissed the appeal, finding that although the petitioner met at least three of the six evidentiary criteria, she failed the final merits determination because the record did not establish a degree of expertise significantly above that ordinarily encountered in business management. Without qualifying for EB-2 exceptional ability, she was also ineligible for the national interest waiver.
The petitioner, a business manager from Brazil, sought EB-2 immigrant classification as an individual of exceptional ability and a national interest waiver. Although SCOPS had found she met five evidentiary criteria, it denied the petition at the final merits stage. On appeal, the AAO agreed with SCOPS's ultimate conclusion, noting that meeting threshold criteria is not enough on its own. The AAO also reversed SCOPS's findings on two criteria — membership in a professional association and recognition for significant contributions — finding those were not actually met. Because the petitioner's education, licenses, and recommendation letters reflected ordinary qualifications rather than expertise significantly above the norm, she failed the final merits determination and was consequently ineligible for the national interest waiver.
What worked: The petitioner successfully demonstrated at least three of the six required evidentiary criteria, including a bachelor's degree in business administration, at least ten years of full-time experience, and a professional license, clearing the initial evidence threshold.
What failed: 1. Recommendation letters from colleagues and employers praised the petitioner's dedication and reliability but did not show her expertise was above that of an ordinary business manager. 2. The professional license and association membership were standard requirements for anyone practicing in her field in Brazil, not markers of exceptional ability. 3. The petitioner's degree and training certificates showed she met general educational qualifications without evidence that her knowledge or credentials stood above the norm in her field.
Takeaway: For an EB-2 exceptional ability petition, meeting the minimum evidentiary criteria is only the first step — petitioners must also provide comparative evidence (e.g., expert opinion, industry benchmarks, or recognition from outside their direct employers) showing their expertise is substantially above the ordinary level in their field. Generic praise in recommendation letters and standard professional credentials are unlikely to satisfy the final merits determination.
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 at least three of the six required evidentiary criteria, including a bachelor's degree in business administration, at least ten years of full-time experience, and a professional license, clearing the initial evidence threshold.
● Evidence that wasn't enough alone
- Recommendation letters from colleagues and employers praised the petitioner's dedication and reliability but did not show her expertise was above that of an ordinary business manager
- The professional license and association membership were standard requirements for anyone practicing in her field in Brazil, not markers of exceptional ability
- The petitioner's degree and training certificates showed she met general educational qualifications without evidence that her knowledge or credentials stood above the norm in her field.
Completed
I-140 filed
Business manager
Completed
SCOPS — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2026-05-01
AAO decision — Dismissed
The AAO dismissed the appeal, finding that although the petitioner met at least three of the six evidentiary criteria, she failed the final merits determination because the record did not establish a degree of expertise significantly above that ordinarily encountered in business management. Without qualifying for EB-2 exceptional ability, she was also ineligible for the national interest waiver.
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.