Good news — this case cleared the first bar
The AAO withdrew the Director's denial because the denial relied substantially on evidence from an unrelated case. The matter was remanded for a new decision based on the correct record.
The petitioner, a waiter from Brazil, filed an I-140 seeking EB-2 classification as an individual of exceptional ability with a national interest waiver. The Texas Service Center Director denied the petition finding the petitioner had not met the minimum three exceptional ability criteria. On appeal, the AAO found that the Director's analysis of three of the five claimed criteria referenced construction industry employment letters and income statements that the petitioner had never submitted — evidence apparently belonging to a different case. Because the denial was largely based on an incorrect record, the AAO withdrew the Director's decision and remanded for a new decision. The AAO also flagged several substantive deficiencies in the petitioner's actual evidence and noted that the petitioner's inconsistent description of his proposed endeavor (waiter vs. business owner) must be resolved before a national interest waiver analysis can proceed.
What failed: 1. The petitioner's employment letters did not clearly establish 10 full years of full-time experience, partly because of a COVID suspension period where he was listed as employed but not working or compensated. 2. Salary comparisons to Brazilian waiters rather than to similarly employed workers in the same market did not demonstrate exceptional ability. 3. LinkedIn articles written by the petitioner were not evidence of third-party recognition or significant contributions to the field. 4. Membership associations were not confirmed to be 'professional associations' under the regulatory definition given the petitioner's lack of a baccalaureate degree.
Takeaway: When filing an EB-2 NIW petition, petitioners must ensure that all evidence submitted is consistent with a single, clearly defined proposed endeavor, and that salary comparisons are made to similarly employed workers in the relevant U.S. market rather than a home country. Petitioners should also confirm that any claimed membership organizations qualify as 'professional associations' under the regulatory definition.
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 employment letters did not clearly establish 10 full years of full-time experience, partly because of a COVID suspension period where he was listed as employed but not working or compensated
- Salary comparisons to Brazilian waiters rather than to similarly employed workers in the same market did not demonstrate exceptional ability
- LinkedIn articles written by the petitioner were not evidence of third-party recognition or significant contributions to the field
- Membership associations were not confirmed to be 'professional associations' under the regulatory definition given the petitioner's lack of a baccalaureate degree.
Membership in the American Management Association (noted but ultimately found insufficient to confirm professional association status)
Membership in the International Council on Hotel, Restaurant, and Institutional Education (documented but not confirmed as a qualifying professional association)
High school diploma — not shown to relate to the area of claimed exceptional ability
Short-term vocational training certificates — not from a qualifying college, university, or institution of learning
Employment letters as waiter — did not clearly establish 10 full-time years as of the filing date; gap period and COVID suspension period unresolved
Pay receipts from cruise lines compared to Brazilian waiter wages — comparison to home-country wages does not establish exceptional ability
Letters from colleagues attesting to years of experience — length of experience alone is not an achievement or significant contribution to the industry
LinkedIn articles authored by petitioner — petitioner's own authorship is not evidence of recognition or significant contribution without objective corroboration
Business plan describing two distinct proposed endeavors — petitioner cannot establish eligibility through multiple related but distinct proposed endeavors
Director's analysis of the 10-years-of-experience criterion relied on letters from an accountant attesting to construction industry employment that the petitioner never submitted
Director's analysis of the salary criterion referenced income statements from a construction company that the petitioner never submitted
Director's analysis of the recognition criterion referenced a magazine cover story about the petitioner that the petitioner never submitted
Director incorrectly found membership criterion satisfied without confirming that the organizations qualify as 'professional associations' under the regulatory definition
Completed
I-140 filed
Waiter (food and beverage service); also proposed running a business providing waitstaff to event planners
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-10-13
AAO decision — Remanded
The AAO withdrew the Director's denial because the denial relied substantially on evidence from an unrelated case. The matter was remanded for a new decision based on the correct record.
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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