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How To Meet USCIS Standards for NIW Petitions: A Guide to Matter of Dhanasar

If you want to receive a green card based on employment, you may have considered an EB-2 National Interest Waiver (NIW). EB-2 NIW applications are notoriously difficult to have approved, so you need to know the standards that USCIS applies on these applications before you begin the visa application process. In this post, we will discuss the NIW standards as described in Matter of Dhanasar and how they are applied by USCIS.

To apply for an NIW you should hire an immigration attorney in Charlotte to help you with the application process. An attorney can help you avoid common mistakes with your application as well as track down critical pieces of documentation.

What are the Requirements of the NIW category?

If your field of work is one that is generally considered to be important, and you possess an advanced degree or have exceptional ability in your field, then you may be qualified for a national interest waiver (NIW).

As a threshold matter, to qualify in the NIW category you must prove that you are either a member of the professions holding an advanced degree (typically a U.S. master’s degree or higher) or an individual of exceptional ability in the sciences, arts, or business. Moreover, the job that you will be doing in the United States must require that you be a professional holding an advanced degree or be an individual of exceptional ability. If you possess an advanced degree, but the job you want to do in the United States does not require an advanced degree, then the NIW application will not be successful. Likewise, if the job requires possession of an advanced degree but you do not have one, then the NIW application will not be successful. Both sides of the equation must be satisfied.

A significant advantage of the NIW process is that you can file the petition on your own behalf without having a job offer from an employer (although it is helpful to have such a job offer). On the other hand, this lack of a job offer requirement is also one of the reasons why this type of petition is more difficult to be approved, since you still must prove to USCIS that you have the ability to actually work in the United States in your proposed field, and that it would be beneficial to the United States to waive the job offer on your behalf.

What is Matter of Dhanasar?

Matter of Dhanasar is a decision by the USCIS Administrative Appeals Office that announced the framework that USCIS relies upon when making decisions on NIW applications. Matter of Dhanasar created a three-prong approach, and applicants must satisfy all three of the specific prongs to prove that they are eligible for an NIW.

Here is a breakdown of the Dhanasar NIW requirements.

Substantial Merit and National Importance

The first prong, and the most important prong, is to prove that the work you want to do in the United States (called the “proposed endeavor”) has both substantial merit and national importance. The reason this is the most important prong is that you must have a very clear idea of exactly what you want to do in the United States before you can gather the evidence in support of your NIW application. If you do not know exactly what you want to do in the United States, you will have a very difficult time explaining to USCIS why that job has substantial merit and national importance; explaining how you are uniquely qualified to perform that job; or explaining why it is in the interests of the United States to grant you a visa through the NIW process to perform that job.

USCIS considers the term “endeavor” to be more specific than the general occupation. Not only must the NIW application include details as to what the general occupation normally involves, the application also must describe the type of work you will undertake specifically within that occupation. For example, while engineering is an occupation, it is not sufficient to merely state in the NIW application that you will work in the field of engineering. Instead, you need to make clear what type of engineer you want to be (e.g., environmental engineer who will clean up toxic waste sites) and why that work is important to the United States (e.g., cleaning up toxic waste sites directly protects human health and the environment by preventing exposure to hazardous chemicals that can cause serious illnesses). 

To prove an endeavor has substantial merit, USCIS will consider the broad field within which the work will be performed, such as business, entrepreneurship, science, technology, culture, health, or education. In addition, USCIS will consider evidence of the endeavor’s potential significant economic impact, but merit may be established without immediate or quantifiable economic impact. Moreover, endeavors related to research, pure science, and the furtherance of human knowledge may qualify for an NIW, whether or not the potential accomplishments in those fields are likely translate into economic benefits for the United States.

An endeavor may have “national” importance because it has national or global implications within a particular field, such as certain improved manufacturing processes or medical advances, or if there is “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.”  However, in determining national importance, USCIS looks at what you personally will be doing in your endeavor, not at the occupational classification within which your job is placed. If your personal endeavor does not have national importance, the merits of your field of work do not matter. For example, a job as an emergency room doctor, while possessing merit, generally will not have national importance because the scope of impact of the job is usually limited.

Ultimately, if the evidence of record demonstrates that your proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.

The evidence you must provide for an NIW application will depend on your particular situation. The evidence you provide should be tailored to the specific endeavor you want to perform, so you need to know exactly what job you want to do before you begin trying to gather evidence to prove substantial merit and national importance. Depending on your background and the job you want to perform, you may need to prioritize certain types of evidence over others to create a strong petition. For example, you might provide proof that your proposed endeavor could significantly benefit different economic areas as well as provide more jobs for U.S. workers. Additionally, you could provide proof that it would enhance societal welfare, culture, or artistic enrichment..

Ability to Advance Work

The second prong of the Dhanasar standard is to showcase that you are particularly well positioned to advance your proposed endeavor. In essence, this means you must show that you are qualified to perform the endeavor in the United States, and that you have a realistic plan to actually obtain employment in the United States doing your proposed endeavor.

There are many ways you can go about proving your qualifications. The specific supporting documents you need to obtain will depend on your personal situation, but can include things like degrees, skills, and records showcasing your success in your field of work. Other potentially helpful documents include a detailed business plan; correspondence from prospective or potential employers, clients, or customers; evidence showing feasible plans for financial support; or evidence that you have received investment from U.S. investors in amounts appropriate to your endeavor.

An immigration attorney will be crucial in helping you track down the documentation you need to prove that you are qualified to perform your proposed endeavor. An attorney can also help you tackle any issues that may come up later on, such as requests for additional evidence.

National Benefit of Waiving Job Requirements

The default rule in employment-based immigration cases is that you must have a sponsoring employer that has offered you a permanent position in the United States. In an NIW application, you are asking the United States government to “waive” this normally-required job offer because doing so would be in the “national interest” of the United States. In short, you must convince USCIS that it would benefit the United States to let you avoid the default job offer requirement.  

For this final prong, USCIS assesses whether your endeavor and your qualifications, taken together, provide such significant benefits to the United States such that a waiver of the job offer requirement outweighs the benefits that ordinarily flow from that requirement. In establishing eligibility for this prong, Matter of Dhanasar states you can provide evidence of:

  • The impracticality of a labor certification application (a test of the labor market to determine if a qualified U.S. worker can be found);
  • The benefit to the United States from your contributions, even if qualified U.S. workers were also available; and
  • The national interest in your contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

More specific considerations may include issues of public health or safety; your possession of unique knowledge or skills exceeding those normally found in your field; whether your endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and whether your endeavor may lead to potential job creation.

Contact a Charlotte Immigration Attorney Today

Do you want to apply for an employment-based visa so you can come to the United States and progress in your career? If so, contact the Charlotte immigration attorneys at The Fogle Law Firm LLC through our website or by calling us directly at 404-522-1852. We look forward to assisting you.