WELL POSITIONED FOR EB-2 NIW

If you would like to achieve an employment-based green card, but you do not want to get a job offer and labor certification, the EB-2 national interest waiver might be for you. Foreign nationals are able to self-petition for this type of lawful permanent residency, even if they are living outside the United States.

Self petitioning; however, does not mean that an individual cannot access the experience of an immigration attorney. In fact, a lawyer who handles employment-based green cards can actually serve as the petitioner for the case, as well. 

Matter of Dhanasar
In December 2016 the framework for the EB-2 national interest waiver changed as a result of Matter of Dhanasar, a case that sought to revamp the criteria for achieving a waiver of the job offer and labor certification requirement of an EB-2. What resulted is the current three-prong test for an NIW:

1. that the foreign national’s proposed endeavor has both substantial merit and national importance;
2. that the foreign national is well positioned to advance the proposed endeavor; and
3. that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification

An NIW petitioner must demonstrate that they meet these criteria by a preponderance of the evidence, which means that it is more likely than not that they do. However, this is not the last step, as the case also states that, “If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.”

Proposed Endeavor
The second element for an EB-2 NIW, according to Dhanasar, is “that the foreign national is well positioned to advance the proposed endeavor.” But how does one show what their proposed endeavor is? And what qualifies as a proposed endeavor?

Fortunately, an EB-2 NIW candidate does not have to establish that their plans will definitely be successful in the United States once they are granted permanent residency. Therefore, the petitioner can submit a one-page future plan of their short and long term goals, or they can submit the large personal plan that has recently become popular among immigration tools merchants.

According to the Dhanasar case, being well positioned to achieve a proposed endeavor can be evidenced by “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.” Other items can also assist in proving that a potential NIW beneficiary is well positioned.

Using EB-1A criteria to show that you are well-positioned
Although the EB-1A is a different type of green card that requires that a candidate be one of few who has risen to the top of their field, if an EB-2 NIW petitioner can show that a foreign national meets some of the criteria, this could demonstrate that they are well positioned. The EB-1A extraordinary ability green card requires that someone meet at least three of ten criteria. 

If a second preference NIW candidate can show evidence that they fall into any of those ten criteria, they might be able to use that information to prove that they are well positioned. For example, they might submit examples of their published research, membership cards from professional organizations, or evidence of having judged the work of others. Moreover, letters of recommendation can be useful ways to show one’s stature in a particular industry. 

Ask an EB-2 NIW immigration attorney near you
If you want to consult with an attorney before filing a second preference green card petition, it may be prudent to speak to one who handles the EB-2 NIW on a regular basis. After all, if you want really good Italian food, you do not go to a restaurant that has a diverse menu, right? You seek out a chef that prepares that type of cuisine on a regular basis.



Photo by Li Sun from Pexels
 
 
 

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