This episode provides details on why a lot of people are NOT eligible for EB-2 NIW and importantly explains how the same person can be eligible in one job but not another.
You make a very interesting point about how the employer and workplace play a significant role when qualifying for the EB-2 NIW. I never think before that these factors can greatly influence the strength of the petitioner case, I think make a lot of sense. The employer’s reputation and the field of work can provide additional credibility to the petitioner contributions, emphasizing their potential impact on the U.S. economy, or national interests.
Thank you for taking time to comment. It is definitely true that the details of an employer can contribute to the success of an EB-2 NIW self-petition case.
Note that after an EB-2 NIW I-140 petition is approved, there will be very little scrutiny on the kind of employer or work being done. I hope to do a future podcast about that - changing employers and the impact on an EB-2 NIW I-140 approval.
Really insightful episode! These points can have an important bearing on career decisions for folks working in the US with the goal of long-term immigration.
One thing I'm curious about is the impact of changing jobs after I-140 approval, while waiting for one's priority date to become current (i.e., before I-485 AOS). Would one's EB-2 NIW case be assessed just as stringently at the time of I-485 filing as it was during the I-140 application, and could changing jobs during the intervening time hurt one's chances of I-485 (and potentially mean needing to restart with a new priority date)?
For most industry NIW cases, the proposed endeavor will be hosted by an employment opportunity, but the employer only represents the endeavor’s geographical locus and focus, serving merely as a platform or vehicle for advancing work with far-reaching implications. The scope and benefits of the endeavor itself are not confined to the organization or its immediate clients. Instead, the endeavor aligns with the example of an 'improved manufacturing process' in deciding national importance outlined in Matter of Dhanasar.
In addition, as clarified in Matter of Dhanasar, the endeavor does not require its benefits to extend beyond geographical bounds. The Matter of Dhanasar case explicitly states: "Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.”
If USCIS strictly follows the precedent case, they should not use private or local benefit as grounds to reject cases.
I agree with you that USCIS should not be denying cases in this way but sadly it does not matter what you and I think.
At the highest level -
Matter of NYSDOT was a "look back" test to see what you have done and then the officer would assess whether you were worthy of EB-2 NIW.
Matter of Dhanasar was supposed to be a "look forward" test to see if what you are going to do is nationally important.
And the Biden policy memos on STEM and CET were supposed to give more definitive guidance on what constitutes an endeavor of national importance.
But the USCIS officers could not handle it. Too many people were eligible based on Dhanasar and the Biden Policy memos, especially software and IT professionals which they seem to hate. So they have 'invented' this idea of private benefit to trump the look forward test and allow them to go back to the NYSDOT standard which is what they really love -- judging people for what they have already done.
The U.S. immigration system functions under a lottery and cap framework. The National Interest Waiver does not favor excessive approvals from any particular field or country of birth, which must be commensurate with the green card cap limitations. Internally, it is possible that each officer operates under an implicit cap. Because USCIS grants a national interest waiver as a matter of discretion, once the number of eligible cases exceeds this cap, officers may adopt a lottery-like approach, randomly rejecting cases despite the guidelines established by the **Dhanasar** framework, the USCIS Policy Manual, or relevant executive orders.
One thing that would be interesting to discuss- and I understand that it’s purely speculative- are your thoughts as to how the incoming administration may impact EB-2 NIW standards. Did they do much to tighten NIW back in 2017-2021? Should we expect tightening moving forward and how fast?
Would be interested in hearing if you’re being more selective in the cases you take based on anticipated changes in standards.
I plan to have a separate post/podcast on anticipating the Trump 2.0 Administration and EB-2 NIW and EB-1. I do not actually think there will be much of change from the current adjudication standards of Dec 2024.
Definitely we are already re-calibrating the cases we take based on the "new normal" which has already started (as I explain in multiple podcasts in December 2024).
Hi Bob,
You make a very interesting point about how the employer and workplace play a significant role when qualifying for the EB-2 NIW. I never think before that these factors can greatly influence the strength of the petitioner case, I think make a lot of sense. The employer’s reputation and the field of work can provide additional credibility to the petitioner contributions, emphasizing their potential impact on the U.S. economy, or national interests.
Thank you for taking time to comment. It is definitely true that the details of an employer can contribute to the success of an EB-2 NIW self-petition case.
Note that after an EB-2 NIW I-140 petition is approved, there will be very little scrutiny on the kind of employer or work being done. I hope to do a future podcast about that - changing employers and the impact on an EB-2 NIW I-140 approval.
Hi Bob,
Really insightful episode! These points can have an important bearing on career decisions for folks working in the US with the goal of long-term immigration.
One thing I'm curious about is the impact of changing jobs after I-140 approval, while waiting for one's priority date to become current (i.e., before I-485 AOS). Would one's EB-2 NIW case be assessed just as stringently at the time of I-485 filing as it was during the I-140 application, and could changing jobs during the intervening time hurt one's chances of I-485 (and potentially mean needing to restart with a new priority date)?
For most industry NIW cases, the proposed endeavor will be hosted by an employment opportunity, but the employer only represents the endeavor’s geographical locus and focus, serving merely as a platform or vehicle for advancing work with far-reaching implications. The scope and benefits of the endeavor itself are not confined to the organization or its immediate clients. Instead, the endeavor aligns with the example of an 'improved manufacturing process' in deciding national importance outlined in Matter of Dhanasar.
In addition, as clarified in Matter of Dhanasar, the endeavor does not require its benefits to extend beyond geographical bounds. The Matter of Dhanasar case explicitly states: "Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.”
If USCIS strictly follows the precedent case, they should not use private or local benefit as grounds to reject cases.
I agree with you that USCIS should not be denying cases in this way but sadly it does not matter what you and I think.
At the highest level -
Matter of NYSDOT was a "look back" test to see what you have done and then the officer would assess whether you were worthy of EB-2 NIW.
Matter of Dhanasar was supposed to be a "look forward" test to see if what you are going to do is nationally important.
And the Biden policy memos on STEM and CET were supposed to give more definitive guidance on what constitutes an endeavor of national importance.
But the USCIS officers could not handle it. Too many people were eligible based on Dhanasar and the Biden Policy memos, especially software and IT professionals which they seem to hate. So they have 'invented' this idea of private benefit to trump the look forward test and allow them to go back to the NYSDOT standard which is what they really love -- judging people for what they have already done.
The U.S. immigration system functions under a lottery and cap framework. The National Interest Waiver does not favor excessive approvals from any particular field or country of birth, which must be commensurate with the green card cap limitations. Internally, it is possible that each officer operates under an implicit cap. Because USCIS grants a national interest waiver as a matter of discretion, once the number of eligible cases exceeds this cap, officers may adopt a lottery-like approach, randomly rejecting cases despite the guidelines established by the **Dhanasar** framework, the USCIS Policy Manual, or relevant executive orders.
One thing that would be interesting to discuss- and I understand that it’s purely speculative- are your thoughts as to how the incoming administration may impact EB-2 NIW standards. Did they do much to tighten NIW back in 2017-2021? Should we expect tightening moving forward and how fast?
Would be interested in hearing if you’re being more selective in the cases you take based on anticipated changes in standards.
I plan to have a separate post/podcast on anticipating the Trump 2.0 Administration and EB-2 NIW and EB-1. I do not actually think there will be much of change from the current adjudication standards of Dec 2024.
Definitely we are already re-calibrating the cases we take based on the "new normal" which has already started (as I explain in multiple podcasts in December 2024).
Thanks for taking time to comment.