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

2016-12-28, BY wegreened

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:
  1. The waiver applicant's proposed endeavor must have both substantial merit and national importance.
  2. The waiver applicant must demonstrate that they are well positioned to advance the proposed endeavor.
  3. 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 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.

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