NIW has been one of popular ways to obtain an employment-based green card without a job offer and labor certification process. Until December 27, 2016, NIW petitions have been evaluated by USCIS under the NYSDOT standard decided by the Administrative Appeals Office (AAO) in 1998. AAO'S new decision of Matter of Dhanasar vacated NYSDOT and laid out a new standard for an EB2 NIW petition.
This new standard aims to streamline an adjudication process of NIW petitions and open the door for an expanded range of foreign nationals such as self-employed inventors or entrepreneurs to obtain a green card. It also put less emphasis on the number of publications or/and citations, which have been one of the primary criteria under NYSDOT.
Based on the Dhanasar ruling, the petitioner must demonstrate the following:
• The petitioner's proposed endeavor must have both substantial merit and national importance.
• The petitioner must demonstrate that he or she is well positioned to advance the proposed endeavor.
• The petitioner must demonstrate that it would be beneficial to the United States to waive the job offer and labor certification requirements.
The following are recommended to meet all the three requirements.
The petitioner must successfully argue that the petitioner's endeavor, whether it is scientific, business, entrepreneurial, technological, cultural, health or educational, has significant merits and national importance. The petitioner is expected to discuss that his or her endeavor has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes, medical advances or advanced scientific knowledge. The petitioner may also discuss that his or her endeavor is related to urgent national needs such as promotion of STEM education, national defense, improved medical research/ services or improved economy.
The petitioner must also successfully argue that the petitioner is well positioned to advance the proposed endeavor. This requirement shifts the focus from the proposed endeavor to the petitioner's qualifications. The petitioner may discuss what is exceptional and unique about his or her qualifications such as education, skills, or/and knowledge. The petitioner may also discuss his or her record of success or achievements in terms of grants/funds, playing a significant role in funded projects, publications, memberships, awards, conference presentations, invited talks, media reports or/and patents. The petitioner may discuss his or her model or plan for future activities, any progress toward achieving the proposed endeavor, or/and the interest of potential customers, users, investors, or other relevant entities or individuals
The petitioner must successfully argue that it would be beneficial to the United States to waive the job offer and labor certification requirements. The petitioner is expected to discuss why his or her endeavors and qualifications would be beneficial to the United States.
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