The US Immigration EB-2 NIW green card not always a slam-dunk.
(By Dianne Stewart – President, PathwayUSA, Charlotte, NC, USA)
So you’re a pilot with ATP and possibly even FAA licences. You would like to live and fly in the USA, and you’ve been told you can get an EB-2 National Interest Waiver (NIW)? That you can do it yourself, don’t need a job-sponsor before you even start?
This is not always the case. As the old adage says, “If it sounds too good to be true, it probably isn’t!”
The good news is that EB-2 green cards for well-qualified pilots are realistically attainable, but you should have a job lined up. And possibly already have EB-3 green cards. However, to do it yourself – to ‘self-petition’ without a job-sponsor under the NIW program may be more problematic.
In 2016 the Administrative Appeals Office of the USCIS issued a decision – Matter of Dhanasar – that laid down the qualifying criteria for a NIW. This specifically requires the self-petitioner to demonstrate that :
- Your proposed endeavour has both “substantial merit” and “national importance”, and
- You are “well-positioned” to advance the proposed endeavour, and
- On balance, it would be beneficial to the United States to waive the job offer and labour certification requirements.
In short, your work needs to be related to an important goal, and that your work is beneficial to the United States.
Each petition will be adjudicated on its evidentiary strength. So it’s impossible to attempt specific examples of what may be favourably considered in a pilot’s petition.
It is accordingly essential that you have a critical look at your own work to determine whether you meet the Dhanasar Test. Indeed, even if you’re a great pilot, that’s not enough for an NIW. What else are you doing in the aviation field that you will, and are well-positioned, to pursue in the USA, that has Substantial Merit and that is of National Importance?
For example, it should be something that will have a substantial beneficial economic impact to your industry or the country, or something that will substantially enhance the safety and security of air-travel passengers, or something that will substantially reduce the impact of aviation on climate change.
Here are some NIW approval examples:
- A helicopter pilot & instructor who specialised in recurrent emergency training & mountain flying.
- A flight test engineer & instructor who performed the evaluation of the first flight management system integrated into a single-pilot cockpit of a fighter/attack aircraft, as well as the largest software change to the F/A-18 operational flight program.
- A Pilot who specialized in medical evacuation and emergency flying.
- A Pilot and Aerospace Engineer who specialized in the field of test flight education.
Note though that the NIW is not granted to ease a labour shortage like a pilot shortage. While standard pilot skills are important, they are not so unique that the US government is willing to grant a green card and potentially displace an American from a job.
The proper route is to obtain a job offer and then follow a traditional reliable immigration process.
Consider the NIW as only for rare and exceptional circumstances that can be supported with overwhelming factual evidence. Of late, the tide is changing and the USCIS has been and will continue to deny more NIW cases as the NIW category is abused.
Unscrupulous lawyers market the NIW as a quick-fix green card solution. Although the employment authorisation may be approved quickly, in the long run the green card is often denied, leaving the client “out of status” and even with a revoked non-immigrant visa such as a student visa or even a tourist visa.
The best advice is to talk with someone who is unbiased and impartial, and who does not have an interest in whether you retain their services or not, or what visa route you might decide upon. It’s your responsibility to educate yourself about the visa qualifying requirements and to make informed decisions – ultimately you have to live with the results.
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PathwayUSA is not an immigration law firm and we do not provide legal advice or legal services. We are an educational concierge relocation consultancy, providing reliable, unbiased, impartial, non-partisan educational advice and support for every aspect of your US Relocation, from initial planning, through actual relocation, to successfully settling into your new home-country. For professional services we will refer you to one of our preferred professional legal or other service providers that we have selected on the basis of exceptional service, long track records with quantifiable results and superior professionalism.