EB-1, EB-2 & EB-3 National Interest Waiver
 

The EB-2 Category for Aliens of Exceptional Ability has a lower evidentiary burden than the EB-1 category, but requires more detailed argument and evidence of national interest benefits. In December 2016 the USCIS Administrative Appeals Office published the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which established a new analytical framework for National Interest Waivers under INA 203(b)(2)(B)(i).  Dhanasar replaced the old NYSDOT framework with a new test intended to provide guidance and promote flexibility in NIW petition adjudication.  The Decision specifically notes that the EB-2 NIW category is underutilized by qualifying entrepreneurs and self-petitioners.
The Dhanasar decision requires the NIW petitioner to satisfy three elements by a preponderance of the evidence:
·         That the foreign national’s proposed endeavor has both substantial merit and national importance;
·         That the foreign national is well positioned to advance the proposed endeavor; and
·         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.
 
EB-1
The EB-1 Immigrant Visa category provides a path to Permanent Resident status for aliens of extraordinary ability, university professors, researchers,  and executives or managers of multinationals.
 
EB-2
Aliens of exceptional ability may seek permanent residence status in the EB-2 immigrant visa category.  This standard is lower than the EB-1 extraordinary ability category, but evidence of national interest benefits is required to avoid the Labor Certification process.  See Matter of Dhanasar.
 
EB-3
Professionals with a baccalaureate degree or foreign workers capable of performing specialized tasks.  This category requires a Labor Certification showing that  there are no qualified workers available in the United States.
 
O-1 Visa: Individuals with Extraordinary Ability or Achievement
 
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification is commonly referred to as:
 
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
 
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
 
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
 
O-3: individuals who are the spouse or children of O-1’s and O-2’s
 

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