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EB2 National Interest Waiver (NIW) Made Easy

The Administration Appeals Office (AAO) of the USCIS made it easier for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business to qualify for green cards by self-petitioning for National Interest Waiver (NIWs) of the employer sponsored labor certification requirement.

Matter of New York State Dept. of Transportation Reversed

The AAO vacated NIW test enunciated in Matter of New York State Department of Transportation (NYSDOT) in 1998. While we maintained great success after NYSDOT, many individuals and attorneys found it difficult to prepare a winning NIW self-petitions under NYSDOT. The NYSDOT test had required:

  1. That the person seek employment in an area of "substantial intrinsic merit";
  2. That the proposed benefit be "national in scope"; and
  3. That the petitioner demonstrate that the "national interest would be adversely affected if a labor certification (PERM) be required.

Matter of Dhanasar

On December 27, 2016, the AAO replaced NYSDOT with Matter of Dhanasar.

Mr. Dhanasar had a Ph.D. in aeronautical engineering, 2 M.S. degrees and an exceptional resume. When he self-petitioned for an NIW, the USCIS denied his I-140 citing NYSDOT. The AAO on review realized the NYSDOT test was too restrictive and granted Mr. Dhanasar his self-petition. The Matter of Dhanasar test states the following requirements:

  1. The foreign national's proposed endeavor has both substantial merit and national importance;
  2. The foreign national is well-positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the US to waive the job offer and PERM requirements of the EB-2 category.

The National Interest Waiver will now benefit thousands of exceptional individuals, educated professionals, innovative entrepreneurs, and other very talented individuals with green cards when self-petitioning under the NIW. Whether one is in H-1B, E-2/E-3, L-1, O-1, or F-1 OPT, or some other status this category is now more available to you.

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