Ten Common Reasons Your EB-2 NIW Visa May Be Denied


Ten Common Reasons Your EB-2 NIW Visa May Be Denied

The EB-2 (employment-based second preference) visa with the National Interest Waiver (NIW) allows foreign professionals with either an advanced degree or exceptional ability in the arts, sciences, and business to self-petition. Thus, it is the best option for many foreign professionals seeking permanent residency or a green card without having a sponsoring employer. Besides permanent residency, its main benefit is the flexibility it offers qualified foreign professionals. 

Once in the U.S., they can start their enterprise or find employment at whichever employer they prefer. It differs from an EB-2 visa without the NIW, which needs a sponsoring employer. Thus, EB-2 NIW applicants must be aware of every common mistake and possible reasons for a visa denial to avoid experiencing it.

EB-2 with NIW Visa Overview

Firstly, it is crucial to understand the EB-2 NIW visa itself in order to avoid making mistakes that could result in a visa denial. After all, it is an endeavor that takes a lot of effort, time, and money to accomplish.

The EB-2 (employment-based second preference) visa is an immigrant visa that grants permanent status or a green card to qualifying individuals. These individuals must be members of professions holding an advanced U.S. degree or its foreign equivalent or a person with exceptional ability in the arts, sciences, or business.

To be eligible as an applicant with an advanced degree, your job offer must require an advanced degree or those above a U.S. Bachelor’s degree or its foreign equivalent, being a baccalaureate or equivalent foreign degree plus five years of post-baccalaureate, progressive work experience in your specialty. Other than that, you must also meet other requirements stated on the labor certification.

Additionally, sufficient evidence of your eligibility as an individual with an advanced degree must be presented, such as your official academic records proving your advanced degree qualification as well as letters from your former or current employers providing at least five years of progressive, post-baccalaureate work experience in your field of expertise. 

It is important to note that Doctoral degrees must either be from the U.S. or at least a foreign equivalent. Applicants who do not possess at least a U.S. four-year Bachelor’s degree or a foreign equivalent are automatically ineligible for the advanced degree classification.

Other than having an advanced degree, you can also apply for the visa as long as you have exceptional ability in the arts, sciences, or business, which is defined as a degree of expertise in your specialty that is above that ordinarily found in your specialty. Since this is employment-based, you must also meet the requirements specified on the labor certification.

Additionally, sufficient evidence of your eligibility as an individual with exceptional ability must be presented, which constitutes meeting three out of the seven criteria below:

  1. Official academic records showing your degree, diploma, certificate, or similar awards from college, university, school, or other institution of learning related to your specialty

  2. Letters from current or former employers documenting at least ten years of full-time experience in your specialty

  3. A license to practice your profession or a certification for your profession/specialty

  4. Evidence that you have commanded a salary (or other remuneration) for your services demonstrating your exceptional ability in your specialty

  5. Membership in a professional association

  6. Recognition for your achievements or significant contributions to your field of specialty by your peers, professional or business organizations, or government entities

  7. Other comparable evidences of eligibility

While the EB-2 visa requires an employer (petitioner) to petition for the foreign professional applicant (beneficiary), this can be circumvented through the National Interest Waiver (NIW). The NIW waives the labor certification requirement for the EB-2 visa. In other words, it circumvents having to have an employer petition for you as it allows you to self-petition on your behalf.

Originally, the NIW’s availability was severely limited by the Matter of the New York State Department of Transportation (NYSDOT). However, since 2016, the Administrative Appeals Office (AAO) revised the three-prong approach, making it more inclusive for a broader range of scenarios and more flexible to meet. 

It became applicable to a wider variety of foreign professional applicants, so long as the U.S. would benefit from their contributions and especially if said contributions are sufficiently urgent to warrant forgoing the labor certification process and, thus, forgoing having an employer. This revision was called the Matter of Dhanasar.

The Matter of Dhanasar three-prong test is as follows:

  1. The applicant’s proposed endeavor has both substantial merit and national importance. This can be shown in areas like technology, science, business, culture, health, or education. It does not need to be quantifiable evidence of economic impact. It is helpful to note that meeting this requirement does not ensure immediate approval, and the application will be reviewed on a case-by-case basis.

  2. The applicant is well-positioned to advance the proposed endeavor. The applicant need not prove that their endeavor will succeed but rather that they have a plan for opportunities to succeed. Factors that impact this include relevant experiences and skills, educational background, a record of similar successes, current progress, and a plan for success.

  3. It would benefit the United States to waive the requirement of a job offer and labor certification. This means that the benefits of waiving the job offer requirement outweigh the advantages of not waiving it.

To summarize, the EB-2 visa is an employment-based immigrant visa issued based on the applicant’s professional background, skills, and exceptional ability. The NIW waives the requirement of having an employer and, thus, the labor certification and allows you to self-petition on your behalf. Only 40,000 green cards are issued to eligible applicants in different professions annually. 

Thus, the EB-2 NIW visa involves a rigorous process in which applicants’ qualifications are thoroughly assessed, making it imperative to ensure that your petition is error-free and that you are eligible in the first place with sufficient evidence to prove it in order to avoid a costly visa denial.

10 Common Reasons for an EB-2 NIW Visa Denial

A visa denial can be a devastating setback, particularly for permanent residency or a green card immigration visa. That is hours, tons of effort, and a lot of money invested into the whole process only to receive a rejection. Foreign professionals seeking to enter the U.S. via the EB-2 NIW route should carefully plan in order to avoid a visa denial.

While there are no particular or definitive list of reasons for a denial, here are ten common reasons why an EB-2 NIW application may be denied:

1. Underestimating the EB-2 NIW petition – It would be amiss to assume that filing the EB-2 NIW petition is just like filling out any other form. Sure, many forms are involved in the petition, but the EB-2 NIW petition is a complicated matter that is more than just responding to a list of questions. Most importantly, it must be evidence-based and backed with research that justifies why the applicant deserves to be granted permanent residency in the U.S. It is, after all, a lot to ask. 

Many people aim to earn a green card to live in the most powerful country in the world permanently. Thus, you can still be rejected even if you could answer every question if you fail to provide a comprehensive argument overall. If uncertain, it is best to seek the help of an experienced immigration attorney rather than completing your petition by yourself. 

It may be cheaper to undertake the process on your own; still, a lack of expert knowledge, especially on the legal frameworks, could result in a denial that could set you back for years and leave permanent implications on your ability to live and work in the United States.

2. Over-complicating the business plan – It is a mistake to assume that you must thoroughly impress the adjudication officer with your technical know-how or expertise. Remember, they are not likely to be an expert in your particular field, so this will only hurt your case. The adjudication officer will decide based solely on what you have included in your petition. 

If your proposed endeavor is littered with technical jargon and too little explanation, they may not understand it. Instead, you must consider your audience and respect their time by writing a clear, compelling, yet concise endeavor or business plan that expresses your past competence and future plans in a way that non-experts in your field could understand clearly. 

Doing so ensures that the message is translated well—that you and your advanced degree or exceptional ability will benefit the U.S., even if the adjudication officer is not an expert in your field.

3. Errors in the documentation and forms – This includes not being thorough in double-checking everything, resulting in missing signatures where they should have been, typographical errors in crucial sections, such as your name, and more. Such basic but common errors can result in your petition being denied right from the beginning. Even a top-notch proposed endeavor will not be accepted if it comes with missing signatures, the name does not match the IDs, etc. 

Besides, it is a highly unprofessional mistake to make. It will be difficult to convince the adjudication officer of your eligibility while overlooking basic errors that indicate non-thorough evaluation before submitting the petition. Thus, applicants must address every question sufficiently and avoid making mistakes or inconsistencies. Even small mistakes will compound, given the permanent nature of the petition.

4. Weak or insufficient evidence – Documents that prove or demonstrate what you claim to be your background, experience, or ability are essential in crafting a well-written, clear, and convincing petition and proposed endeavor. You must be able to provide strong evidence that you have the necessary skills and abilities that you mention to support your claim and have the adjudication officer believe that you will be an asset to the U.S. 

However, it is important to note that overloading the petition with too much evidence is also not a good idea. You must carefully select your strongest evidence and documents and use them well. Piling evidence after evidence will only result in a too-convoluted petition that the adjudication officer might not have time for. It is best to be considerate while still establishing a strong case and submitting essential documentation that avoids inconsistency or conflicting information.

5. Ineligibility –  Petitions are checked on a case-by-case basis. Still, it goes without saying that you must meet the minimum requirements (such as having an advanced degree or exceptional ability) and that failure to do so will result in a denial. You must ensure that you have specialized knowledge or expertise in a field not commonly found in the U.S. to warrant your benefit to the country. 

Likewise, you must have a demonstrated work experience in your field. Strong educational background with inadequate work experience can lead to denial. It is important to ensure that you understand the nuances of every requirement. For example, the requirement of a U.S. Bachelor’s degree or its equivalent means a four-year Bachelor’s degree. 

Many applicants with a three-year Bachelor’s degree will be denied because their three-year Bachelor’s degree is not equivalent to the U.S. four-year Bachelor’s degree. Many EB-2 and EB-2 NIW petitions are denied based on this common error.

6. Not considering the legal framework – Simply stating your evidence will not be strong enough to prevent a denial. It is vital to use that evidence to argue your case in accordance with the laws and regulations applicable to your particular case. The USCIS has established additional criteria and requirements for the visa, which are outlined in its regulations and policy memorandum. 

To be certain, it is best to hire an immigration attorney for this to ensure your compliance with the legal frameworks and that your petition is in line with Section 203(b)(2) of the Immigration and Nationality Act (INA), which is the basis for the EB-2 NIW visa.

7. Failing to demonstrate that your proposed endeavor has substantial merit and national importance – You must demonstrate that your contributions will substantially impact the U.S. positively. This means that your entry to the U.S. does not only serve you. As an entrepreneur, will your business in the U.S. likely scale and succeed, thus resulting in hiring multiple locals? 

As an academic researcher of a particular scientific advancement, will the success of your research create a positive impact beyond yourself? 

Your proposed endeavor’s substantial merit and national importance can be demonstrated and supported by various pieces of evidence like letters of recommendation from experts in your field attesting to the importance of your contribution, evidence of published research or articles demonstrating your work’s impact, evidence that organizations or federal agencies have funded your work, evidence that your work is related to a field of particular interest to the U.S., like energy or healthcare, among others.

8. Failing to demonstrate that you are well-positioned to advance the proposed endeavor – The adjudication officer will look at factors such as your educational background, experiences, relevant skills, successes, and current progress. However, it does not stop there. To successfully meet the visa’s criteria, you must have a projected vision and a future plan. 

Thus, the EB-2 NIW petition cannot be based on past accomplishments alone. Your past experiences are relevant, but so are your future plans. This is often neglected.

Remember, the NIW considers not only your contribution’s substantial merit and national importance but also that you are well-positioned to advance further in your endeavor. That involves a level of future planning that demonstrates that you have a plan for success that will benefit the U.S. enough for them to approve your petition and waive the labor certification requirements. 

Thus, avoid assuming that the petition is just another form to fill. It is a snapshot of what will be your future contributions to the U.S. as a whole as well. In other words, why should you be selected? What will you bring to the table? How will you benefit the country going forward? You can supplement your future plan with strong pieces of evidence of your past accomplishments and educational background, such as transcripts, diplomas, or resumes. 

Evidence of any recognition and award and recommendation letters from colleagues, employers, and other experts in your field will complement your petition and demonstrate your hardworking and go-getting nature combined with your skills and expertise, all of which adds to the probability of succeeding in your future endeavor.

9. Failure to demonstrate that it would benefit the U.S. to waive the labor requirement – You must demonstrate that the national interest would be adversely affected if a labor certification were required. To show that the labor certification process would hinder your employment in the U.S., you can provide evidence that your work is in a field with a shortage of qualified workers in the U.S. 

You can also provide evidence that your unique contribution is specialized and it is difficult to find a qualified U.S. worker to fill your position. Additionally, you can provide evidence that your work is related to a time-sensitive program or project and cannot wait for the labor certification process.

10. Failure to follow up – The USCIS may request additional information or documentation to supplement your petition further, especially if something is unclear. However, some applicants fail to respond promptly or provide the requested information, thus leading to a denial. 

It is best to ensure no holes in your narrative to avoid a situation where the adjudication officer will scrutinize you further with additional questions and documentation. A clear and compelling proposed endeavor and petition should go without a hitch.

To conclude, a well-crafted, professional business plan or proposed endeavor is essential to ensuring your EB-2 NIW petition does not face rejection. Ensure that you are eligible in the first place, the legal frameworks are followed, the petition has sufficient and verifiable evidence and documents free from errors, unnecessary jargon, and inconsistencies, and meet the three-prong test to ensure success. 

If the USCIS requests additional information, respond promptly and with the correct information asked of you. Navigating the EB-2 visa with the NIW application process can be daunting and tedious. However, with a well-written, complete, and compelling proposed endeavor or business plan, especially with the help of a qualified and experienced immigration attorney, you can tackle the hurdles that come with it and emerge victorious in your journey to the United States. 

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