EB-2 NIW for individuals with exceptional skills – who qualifies and what will USCIS adjudicating officers understand as beneficial to the United States of America?

The EB-2 National Interest Waiver (NIW) petition has become very popular among experienced professionals who plan to move to the United States seeking  great job opportunities in the country, especially since 2016, under caselaw known as Matter of Dhanasar which redesigned the criteria for this visa application. However, although it has indeed clarified unclear portions regarding the criteria for a waiver for a case of National Interest, it did not make the process of evaluating EB-2 NIW applications easy and objective as some may think.

The EB-2 NIW is a green card application for professionals with exceptional abilities in the fields of science, arts or business and/or professionals with advanced degree.

To be considered a professional with exceptional abilities, the applicant must present evidence that positions him or her as a professional predominantly above average. Therefore, it is necessary to have sufficient experience in their field of activity to demonstrate that this professional stands out when compared to his/her peers in his/her job market. Compliance with at least 3 of the 7 standard requirements is mandatory.

A professional with advanced degree is one with a master’s degree or doctorate in the USA (or foreign equivalent).

It is important to recall that the EB-2 NIW is an exception to the EB-2 rule, allowing the waiver of the PERM process in cases where the foreign professional is of national interest that his or her knowledge would benefit not only an employer, but the US market in which he or she will operate. Note, therefore, the NIW – National Interest Waiver analysis performed by the immigration officer is discretionary, and (s)he  needs to be convinced that the presence of this foreign professional brings benefits to the U.S. that justifies the granting of the exemption from having an employer sponsoring the visa application.

The rule for this visa seems simple and objective, but the process of adjudicating cases by U.S. immigration officials it is not so simple. The examination of the EB-2 NIW application requires two phases:

A. Analysis of compliance with the criteria for framing as a professional with exceptional abilities and/or as a professional with advanced degree: the U.S. immigration officer will analyze the documentary evidence that proves that the professional has exceptional abilities in his/her field of activity and/or that this professional has an advanced academic level in his field of activity. This first part is relatively objective, and it is quite possible to offer a sufficient set of evidence to demonstrate the relevant experience of the professional. Concluding that there is compliance with the criterion exceptional abilities and/or advanced degree the U.S. immigration officer will pass the examination of the second part.

B. Analysis of the convenience and relevance of waiving or not the professional from a work process before the U.S. Department of Labor (DOL): this second phase is quite subjective and is based on the caselaw known as Matter of Dhanasar, which divides this examination into 3 parts (“three prong test “):

  1. Substantial Merit and National Importance of the Proposed Enterprise: the analysis is made about what the petitioner intends to do in the USA and how the applicant intends to benefit the US market with his or her experience and exceptional abilities. The relevant issue is not the importance of the field of action, industry or caused by the petitioner will work. Instead, USCIS focuses on the specific effort the petitioner proposes to make. When determining whether the proposed endeavor is of national importance, the USCIS considers its potential forward-looking impact. The merit of the enterprise can be demonstrated in several areas, such as business, entrepreneurship, science, technology, culture, health or education. To meet the requirement of substantial merit, the petitioner must demonstrate that his proposed venture has broader implications beyond any company or organization. To meet the requirement of national importance, the petitioner must demonstrate the “potential prospective impact” of his work. For example, the petitioner can explain or demonstrate how their future work will affect the field of activity or that the specific work that the petitioner proposes to perform has broader implications in their field or for the U.S. economy. Providing evidence of various U.S. job offers in your area can help. In addition, provide support letters indicating that the petitioner’s work will contribute to the development of the U.S market that he will operate.
  2. Petitioner is well-positioned to advance with the proposed enterprise: the analysis focuses on the foreign professional (petitioner). To determine whether the petitioner is well positioned to advance the proposed endeavor, the USCIS considers factors that include, but are not limited to, education, skills, knowledge, and a history of petitioner success in related or similar efforts.  The petitioner must present evidence to document the achievements and corroborate projections related to the proposed business.
  3. In the preponderance of evidence, it would be beneficial for the United States to waive the requirements of a job offer and, therefore, the certification of work.  To perform this analysis, the USCIS can evaluate factors such as:
  • If, considering the nature of the qualifications of the petitioner or proposed undertaking, it would be impractical for the petitioner to obtain a job offer or for the petitioner to obtain a work certification;
  • If, even if other skilled American workers are available, the U.S. would still benefit from the petitioner’s contributions;
  • If the national interest in the petitioner’s contributions is urgent to justify the waiver of the labor certification process.
  • In each case, the factor(s) considered should jointly indicate that, in general, it would be beneficial for the U.S. to waive the requirements of a job offer and, therefore, a work certification.

That said, it remains clear that the EB-2 NIW visa is an excellent opportunity for experienced and successful professionals who wish  to share their exceptional ability within the U.S. market, along with the desire to impact their industry by establishing an action and well defined strategic plan   through a personal plan or a business plan, without the need for a job offer or a labor certification, as these professionals have achieved a degree of specialization significantly above that normally found in science, arts or business.

Written by Matheus Etrusco and Louanni Ribeiro

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