EB2NIW Adjudication Trends Analysis - Is The Emerald Age Over?

An attorney's recent remarks have sparked considerable discussion within the immigration community, particularly concerning the EB2 National Interest Waiver (NIW) category. The attorney suggests four key observations:

1. The perceived "Emerald Age" of EB2NIW has ended.
2. Current adjudication standards closely resemble those before the Dhanasar decision.
3. The PERM labor certification process is now a more viable option, especially for IT and software professionals.
4. USCIS places significant emphasis on differentiating between "private benefit" and "broader national benefit" when evaluating national importance.

This article delves into each of these points, providing context, analysis, and practical implications for individuals considering the EB2NIW pathway to permanent residency in the United States.

The Demise of the EB2NIW Emerald Age

The EB2 National Interest Waiver (NIW) has long been a coveted option for foreign nationals with advanced degrees or exceptional ability who seek to bypass the often-lengthy PERM labor certification process. In recent years, many perceived a period of relatively lenient adjudication, leading to higher approval rates for NIW petitions. This era was often referred to as the "Emerald Age" of EB2NIW.

However, the attorney's remark that the Emerald Age has ended suggests a shift in USCIS's approach. To fully grasp this, it's essential to define what constituted this supposed "Emerald Age." Anecdotal evidence suggests that during this period, USCIS officers might have been more receptive to NIW petitions that presented a plausible case for national importance, even if the evidence wasn't overwhelmingly compelling. Some believe that the urgent need for skilled workers in certain sectors, coupled with policy directives aimed at attracting foreign talent, contributed to this more lenient environment. The COVID-19 pandemic and its impact on the U.S. economy and workforce might have also played a role, leading to a more favorable outlook toward foreign professionals who could contribute to the nation's recovery and growth.

Now, the attorney's observation implies a return to stricter scrutiny. This doesn't necessarily mean that NIW approvals are impossible to obtain, but it underscores the need for meticulous preparation and a compelling presentation of evidence. Petitioners must now demonstrate, beyond any reasonable doubt, that their work is of national importance and that waiving the labor certification requirement is truly in the national interest. This requires a deep understanding of the current adjudication trends and a strategic approach to building a strong case.

Return to Pre-Dhanasar Adjudication Standards

The attorney's second point regarding the return to pre-Dhanasar adjudication standards is crucial. Matter of Dhanasar, a landmark Administrative Appeals Office (AAO) decision from 2016, established a three-pronged test for evaluating NIW petitions. This test requires petitioners to demonstrate:

1. That the foreign national's proposed endeavor has both substantial merit and national importance.
2. That the foreign national is well-positioned to advance the proposed endeavor.
3. That, on balance, it would benefit the United States to waive the requirements of a job offer and thus of a labor certification for the foreign national.

Dhanasar provided a framework for USCIS officers to consistently evaluate NIW petitions. However, some argue that in the years following Dhanasar, the application of these standards became somewhat flexible, contributing to the perceived "Emerald Age." The attorney's remark suggests that USCIS is now adhering more strictly to the original Dhanasar framework, demanding more concrete evidence and a more rigorous demonstration of each of the three prongs.

This means that simply demonstrating that one's work is beneficial or contributes to a specific field is no longer sufficient. Petitioners must now articulate clearly and convincingly how their work has substantial merit and national importance, presenting objective evidence to support their claims. They must also provide a detailed explanation of their qualifications and past achievements, highlighting their unique ability to advance the proposed endeavor. Finally, they must demonstrate that the national interest would be better served by waiving the labor certification requirement, often by highlighting how their contributions go beyond the typical benefits associated with their profession or industry.

PERM as a Viable Alternative for IT and Software Professionals

Given the potential increase in scrutiny for NIW petitions, the attorney's suggestion that PERM is now a more viable option, especially for IT and software professionals, is significant. The PERM labor certification process involves employers demonstrating that there are no qualified U.S. workers available to fill the offered position. While PERM can be time-consuming and require significant effort from the employer, it provides a more structured and predictable pathway to permanent residency.

In the past, many IT and software professionals favored NIW due to its perceived speed and flexibility. The ability to self-petition and bypass the need for employer sponsorship was a major advantage. However, with stricter NIW adjudication standards, the PERM process may now offer a more reliable route for many in these fields. The demand for skilled IT and software professionals remains high in the United States, which can strengthen a PERM application by demonstrating the lack of qualified U.S. workers. Furthermore, the PERM process focuses on the specific job requirements and the employer's need, which can be a more straightforward approach than demonstrating broader national importance, as required by the NIW.

This shift underscores the importance of carefully evaluating all available options and choosing the pathway that best aligns with one's qualifications, circumstances, and risk tolerance. Consulting with an experienced immigration attorney is crucial in making this determination, as they can assess individual cases and provide tailored advice.

The Private Benefit vs. Broader National Benefit Dichotomy

The final point raised by the attorney highlights USCIS's focus on distinguishing between "private benefit" and "broader national benefit" when evaluating national importance in NIW cases. This distinction is at the heart of the Dhanasar framework and has become increasingly important in recent adjudications. USCIS officers are tasked with determining whether the petitioner's work primarily benefits themselves or their employer (private benefit) or whether it generates a significant positive impact on a national scale (broader national benefit).

To successfully demonstrate broader national benefit, petitioners must present evidence that their work goes beyond the ordinary contributions of others in their field. This can be challenging, as many professions inherently provide benefits to individuals and organizations. However, NIW petitioners must articulate how their work addresses a critical national need, advances a key national goal, or has the potential to create widespread positive change. This often requires presenting evidence of significant accomplishments, publications, patents, collaborations, or other forms of recognition that demonstrate a substantial impact beyond one's immediate circle.

For instance, a software engineer developing a new technology that improves healthcare outcomes for a large population might be able to demonstrate broader national benefit. Similarly, a researcher making significant contributions to renewable energy research could argue that their work addresses a critical national priority. The key is to clearly connect one's work to a broader national objective and provide compelling evidence of its impact.

Implications and Recommendations

The attorney's observations have significant implications for individuals considering the EB2NIW pathway. The perceived end of the "Emerald Age," the return to pre-Dhanasar standards, the increased viability of PERM for IT professionals, and the focus on broader national benefit all point to a more challenging adjudication environment.

Therefore, the following recommendations are crucial:

• Meticulous Preparation: NIW petitions must be meticulously prepared, with a strong focus on presenting compelling evidence that meets the Dhanasar requirements.
• Clear Articulation of National Importance: Petitioners must clearly and convincingly articulate how their work addresses a critical national need or advances a key national goal.
• Objective Evidence: Objective evidence, such as publications, patents, citations, awards, and letters of recommendation from experts in the field, is essential to support claims of national importance and exceptional ability.
• Strategic Approach: A strategic approach to crafting the petition is crucial, highlighting the petitioner's unique qualifications and the broader impact of their work.
• Consider Alternative Pathways: Explore alternative pathways to permanent residency, such as PERM, and carefully weigh the pros and cons of each option.
• Consult with an Experienced Immigration Attorney: Seek guidance from an experienced immigration attorney who can assess individual cases, provide tailored advice, and navigate the complexities of the immigration process.

Conclusion

The EB2NIW category remains a valuable pathway to permanent residency for foreign nationals with advanced degrees or exceptional ability. However, the recent shift in adjudication standards underscores the need for a more strategic and meticulous approach. By understanding the current trends and preparing strong, well-documented petitions, individuals can increase their chances of success in navigating the complexities of the U.S. immigration system. The key is to present a compelling case that demonstrates not only individual merit but also a significant contribution to the national interest, going beyond private benefit and impacting the broader community.