EB-2 NIW Case Study: IT Specialist (Case Denied)

An IT Specialist from Brazil sought EB-2 NIW; USCIS ruled that his proposed endeavor was not of "national importance" - the peril of PRIVATE BENEFIT

EB-2 NIW (Employment-Based 2nd Preference National Interest Waiver) is a route to a green card which allows for self-petition, that is, the candidate does not have to be sponsored by a U.S. employer.

This is a great thing but clearly not everyone qualifies.

If you are not familiar with EB-2 NIW, you should read my primer here.

As noted in the primer, USCIS officers decide EB-2 NIW cases based on an administrative law case called Matter of Dhanasar. In Matter of Dhanasar, USCIS established a 3-prong test to approve EB-2 NIW cases. A lot of cases get denied for failing to meet Prong 1.

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In this post, I will provide a summary of an EB-2 NIW case denied by USCIS for a Brazilian IT Specialist. This is my sixth EB-2 NIW case study as part of my newsletter.

• Case Study #1 (Lawyer from Brazil) = DENIED

• Case Study #2 (RE Developer) = DENIED

• Case Study #3 (Materials Engineer) = APPROVED

• Case Study #4 (Professor of International Studies) = DENIED

• Case Study #5 (Sales Manager) = DENIED

Of the 6 cases, the approval was mine; the 5 denials were handled by other law firms and appealed to the Administrative Appeals Office (AAO).

You can read AAO decisions on the USCIS website, here.

But why read them yourself when I do!

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• Case #1 - the Lawyer was denied for failure to propose an endeavor of national importance (Prong 1 of Dhanasar).

  • Her endeavor is what I call ‘private benefit.’

• Case #2 - the Real Estate Developer was denied for failure to propose an endeavor of national importance (Prong 1 of Dhanasar).

  • His endeavor is what I would call ‘not credible.’

• Case #3 - the Materials Engineer, filed by me, was approved.

  • Our client satisfied all 3 prongs of Matter of Dhanasar.

• Case #4 - the Professor of International Studies was denied for failure to propose an endeavor of national importance (Prong 1 of Dhanasar).

  • Her endeavor is what I would call ‘localized benefit.’

• Case #5 - the Sales Manager was denied for failure to meet the threshold issue of being eligible as an EB-2 professional.

  • To qualify for EB-2 as a threshold issue, before the 3-prong test, you need either -

    • a Master’s degree; or

    • a Bachelor’s degree plus 5 years of post-Bachelor’s experience; or

    • you need to meet the regulatory criteria for “exceptional ability.”

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OK, let’s see what happened in this case for an IT Specialist and contemplate what he could have done differently.