3 EXAMPLES OF CASE LAW FOR YOUR EB-2 NIW

The EB2 national interest waiver is an immigration benefit for which you can self-petition. Therefore, you might choose not to work with an immigration attorney near you to apply. 
​
Even if you do choose to hire an EB-2 NIW lawyer you might want to become familiar with the cases that USCIS refers to when processing your petition and deciding whether it meets all criteria. The following are three cases that related to the national interest waiver. 

Matter of Brantigan 
Matter of Brantigan is a Board of Immigration Appeals case from way back in 1966. It says, in part that the burden is on the petitioner to establish eligibility for the immigration benefit.  

Therefore, in the instance of the EB2 national interest waiver, the petitioner would generally be the foreign national or their green card lawyer. The petitioner will need to demonstrate with evidence that the foreign national is eligible for the national interest waiver.  

Matter of Chawathe 
An Administrative Appeals Office (AAO) decision from 2010, Matter of Chawathe discussed the standard of proof in an EB-2 NIW case. Unlike with a criminal proceeding where the standard is “beyond a reasonable doubt,” with the national interest waiver green card, the level of proof is by a “preponderance of the evidence.” 

As is explained in the AAO decision, basically this means that the evidence should prove that it is more likely than not (or probably true) that the foreign national meets the criteria for a national interest waiver. Another way to view it is by considering the evidence as more than 50% likely to be true. 

Matter of Dhanasar 
Matter of Dhanasar, which is a 2016 case, established the new standards for the EB2 NIW, Prior to 2016, the standards were slightly different. Under these new criteria, after proving that the foreign national is eligible for an EB-2, they must show the following to USCIS: 

(1) The proposed endeavor has both substantial merit and national importance; 
(2) The Beneficiary is well positioned to advance  
the proposed endeavor; and 
​(3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. 

Talk with a green card lawyer 
Immigration regulations, or interpretation of current laws, are subject to change. Therefore, it can be prudent to discuss your green card matter with an immigration attorney who keeps current on new developments in the courts and at USCIS.  

An EB-2 NIW lawyer can also inform you about current processing times, whether premium processing is available, and if there have been changes to the USCIS filing fees. 
 
 

---