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.
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.
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.
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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