EB2-NIW visa

Mark Morais

ANOTHER VERY ATTRACTIVE VISA IS THE EB2-NIW, which is much sought after by skilled professionals due to its less rigid objective criteria, despite its greater degree of subjectivity. The EB2-NIW applicant can apply on their own, without the need for an U.S. sponsor and without having to go through the bureaucratic labor certification process. You must demonstrate to US authorities that your presence and business plans are relevant to the country; almost as if Uncle Sam couldn’t live without that person anymore (exaggerations aside, it has to demonstrate a broader impact for the US). The EB2-NIW petitioner must prove the following objective criteria: a) have an advanced degree. A bachelor’s degree with at least 5 years of progressive experience post-baccalaureate would suffice; or b) be gifted with exceptional abilities. Bill Gates didn’t need a college degree to found Microsoft. But you don’t have to be a Bill Gates to be considered someone with exceptional abilities: for immigration authorities, all you need to do is prove that you meet just three out of seven criteria:

First criterion : courses, certificates, diplomas… All training courses in your field that are not at a bachelor’s level can be presented as proof of exceptional ability.

Second criterion : at least 10 years of proven experience in your area of expertise.

Third criterion : having a license to practice the profession. Some professions (lawyer, doctor, dentist…) require a license from the corresponding supervisory body.

Fourth criterion : being a member of professional associations.

Fifth criterion : having obtained some type of recognition (awards, letters of recommendation) for their professional performance.

Sixth criterion : proof of remuneration above the category average.

Seventh criterion : catch all; literally any other document, anything that does not meet the above criteria, but is capable of proving your high qualifications and exceptional ability in your profession.

By qualifying on the objective criteria (advanced degree or exceptional abilities), you must show to the government that you are so important to the United States that you deserve to be exempted from the labor certification and job offer requirement , as your plans for the country fit the national interest and are nothing short of glorious. And that’s when things start to tighten; after all, national importance is a rather vague term, and it was practically impossible to prove it, until the Matter of Dhanasar was decided in December of 2016. From then on, what was practically impossible became just difficult, and many professionals have already obtained a green card through EB2-NIW, just because they have enough experience in their areas. And without having to invest small fortunes to get the document. Roughly speaking, the Dhanasar case established that the EB2-NIW candidate must overcome three prongs:

First prong: activity in an area of substantial merit: health, education, economy, strategic matters for any country; and national importance ; your plans must be broad in scope, not just satisfying your interests or those of your customers. This prong is of paramount importance, and to overcome it, you must present an extremely well-crafted professional or business plan, or failure will be virtually inevitable.

Second prong: demonstrate that you will be able to execute the presented project. There is a saying that states that “a piece of paper accepts everything”; but the U.S. authorities are not so easily deceived. Don’t bring a plan for building space rockets if you’ve never built a Lego car; you must prove that you have the resources , knowledge and experience necessary to carry out the project. Your business proposal must be a very well-founded business plan: you can be a qualified and competent professional; but if the business plan is insufficient or confusing, your chances of getting the EB2-NIW dramatically decrease.

Third prong : once the previous requirements are overcome, the government will analyze your proposed endeavor and weigh its positive factors against the government’s need to protect the American labor market; and decide whether your proposed endeavor is so important as to allow you to potentially fill a vacancy that could be U.S. citizen one; leaving an American unemployed to favor a foreigner will not be easy, and you must demonstrate that even if there is a qualified U.S. worker available, the US could still benefit from your entry into the country and, therefore, you can be exempted from proof of having a job offer and having to go through the rigorous process of labor certification.

The EB2-NIW is an excellent opportunity for entrepreneurs who present a good business plan, and this is one of the topics covered by Dhanasar: requiring an entrepreneur to obtain a job offer from an American company defeats the purpose of the essence of entrepreneurship, and a waste of business potential. On the contrary, the intention is for the entrepreneur to come to the country and generate more jobs with his activity instead of occupying a pre-existing job vacancy.

The subjectivity of the EB2-NIW visa requirements is a double-edged sword: as it has open, generic criteria, almost anyone can apply for it. On the other hand, it grants each immigration officer the authority to deny the application according to their particular interpretation of the evidence presented by the applicant. In other words, obtaining your EB2-NIW visa will be subject to the approval of a single person .

Due to the subjective nature of the EB2-NIW visa, in my humble and always correct opinion, about eighty percent of all EB2-NIW visas adjudicated, approvals or denials, are correct, while twenty percent are unfair. Sometimes solid cases are denied, while fragile requests are approved. When it comes to EB2-NIW visas, the saying goes: “every head, a sentence”, and you should hope your application will be adjudicated by a reasonable and “open-minded” agent. Furthermore, the EB2-NIW does not contemplate the possibility of paying for the agility and speed of a premium process, a privileged processing; its analysis can lead to a wait of one to two years sometimes.

The decision between applying for the EB1 or EB2-NIW visa is not always very clear, and the immigration lawyer must behave almost like a medical doctor: in our initial consultations, investigating the symptoms of the case, the professional situation of the patient, without yet having access to all your documents (imaging diagnosis), sometimes we start the treatment believing that we are facing an EB1 case; however, over time and analyzing the evidence provided, we realize that EB1 could be denied and the most favorable scenario would be EB2 -NIW, or vice versa ; we started the process thinking about the EB2-NIW, noting, from the documentation, that the case would be strong for an EB1. It is up to the good lawyer to have the technique and the discernment to correctly evaluate the case, giving the candidate the best chance of approval to obtain the desired visa.

We have observed that the green card dream through EB1 and EB2-NIW visas is perfectly achievable. And despite the intimidating nickname “Einstein visa” given to the EB1, it’s not just the geniuses of the mankind who have access to it; and the “national importance” of the EB2-NIW is no different. We had several success stories in our law office for the most diverse professions: engineers, businessmen, pilots, athletes, researchers, accountants, lawyers, IT professionals, financial, marketing, human resources, in short, from the most diverse origins, which achieved, both EB1 and EB2-NIW. And you know what, none of them imagined at first that it would be possible to get the dreamed green card through such noble visas. So, if you are a good professional and want to live the American dream, take courage: it can be within your reach. Go get it !