EB-2 NIW New Precedent Decision Published – Matter of Dhanasar

On 12/27/2016, the Administrative Appeals Office (“AAO”) released to the public a new adopted legal decision (Matter of Dhanasar) for I-140 EB-2 National Interest Waiver (NIW) petitions. The new decision effectively replaces the previous NYSDOT three-prong test that had been adopted by the AAO for adjudicating NIW cases.

The new decision lays out the following three pronged test for NIW applicants to qualify for a waiver of the job offer requirement:

The waiver applicant’s proposed endeavor must have both substantial merit and national importance.
The waiver applicant must demonstrate that they are well positioned to advance the proposed endeavor.
The waiver applicant must demonstrate that it would be beneficial to the United States to waive the job offer and labor certification requirements.

At our initial analysis of this new decision, we noted a few interesting aspects.

First of all, the new first prong discusses whether the applicant’s proposed endeavor has substantial merit and national importance. In the new decision, the “endeavor” appears to be the personal endeavor of the applicant instead of the field in general. So we need to show that the personal endeavor of the applicant has intrinsic merit and national importance, rather than the field as a whole.

In terms of “national importance”, the AAO alluded to the fact that an undertaking may have national or global implications within a particular field, even if the activities may be based in a certain geographic area. This may mean that petitioners/beneficiaries working in industry, such as process engineers, managers or consultants, might still qualify under the new framework if they can soundly justify the “national importance” of their proposed endeavor, even if they are not publishing papers as a pure researcher. Still, teachers, lawyers, clinical doctors that only treat patients are unlikely to qualify under the non-physician EB-2 NIW framework.

Second, the new 2nd and 3rd prong resemble the old 3rd prong requirement where USCIS evaluate applicant’s qualifications and determine if it would be beneficial to waive the labor certification process. In the decision, USCIS used indicators such as funding from government-related agencies, membership, and media reports to support the new 2nd and 3rd prongs. When evaluating whether one is well-positioned to advance his/her proposed endeavor, USCIS focused on “education background, skills, knowledge, record of success in related to similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.”

It’s worth noting that in the new decision, USCIS did not appear to put heavy emphasis on one’s influence by using publications or citations as the primary factor. Rather, they highlighted evidence such as notable funding, awards, media reports and membership, similar to the criteria for EB2-NIW under Exceptional Ability*.

Overall, the standard for NIW petitions seems to be lower. Applicants with qualifications such as notable funding from government-related agency, membership, patents or media reports, now deserve a second look and see if they qualify for an NIW green card based on the new standard. Applicants with the aforementioned qualifications are welcome to contact us for a free evaluation. Email your CV to law@wegreened.com and our attorneys will provide free evaluation result within 24 business hours.

* Employment-Based Immigration: Second Preference EB-2, subcategory of “Exceptional Ability” (see here)

1) an official academic record showing that the foreign person has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability

2) evidence in the form of letters from current or former employers showing that the foreign person has at least 10 years of full-time experience in the occupation.

3) a license to practice the profession or certification for a particular profession or occupation.

4) evidence that the foreign person has commanded a salary or other remuneration for services that demonstrate exceptional ability.

5) evidence of membership in a professional association or

6) evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

Our Ten Thousand I-140 Approvals Provide Unprecedented Insight into the USCIS Adjudication Trend

With more than 47,000 EB-1A, EB-1B, EB-2 NIW and O-1 cases approved, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

We Have Helped Hundreds and Thousands of Clients with Credentials and Backgrounds Similar to Yours

With our exceedingly large number of successful petitions, no matter what credentials you have, no matter your background and field of expertise, no matter your visa status or nationality, chances are we have helped hundreds or even thousands of clients just like you. Our clients are usually impressed with how well we understand their research and work. Our insight and understanding stems from the fact that we have handled many cases with elements similar to yours already, and this helps us devise the best strategies for each individual petition.

Vast Majority of Clients Came to Us Because of Referrals

For years, our firm has attracted new clients based solely on word of mouth, recommendations, and the positive collaboration experiences shared with them by their friends and family. We take pride in our reputation and work hard to ensure that we provide a green card application experience that our clients are happy to share with their friends and colleagues. That is how our approved cases grew from 600 in 2013 to over 47,000 in 2023.