Q: Do you need a job offer to self-petition for an EB2-NIW?

A: No, that is what the waiver part is for in an EB2-NIW. The waiver is to waive the normal rule of having to have a job offer and do a labor certification. So, you do not need a job offer to do an EB2-NIW.

Q: How can we define substantial merit in plain English? What does the applicant need to prove to satisfy this requirement? And how can we differentiate substantial merit to national importance?

A: I mean, to be honest with you, when it comes to both of those, they’re very similar. However, I will often describe the difference as substantial merit being more general in scope, and the national importance of your specific proposed endeavor being more narrow in scope.

Q: How can a non-STEM graduate like linguistics fit their endeavor into areas of national importance?

A: I would start doing linguistics research. Speaking of that, I will say that we represent a lot of teachers. I was a teacher in my former life, and I believe in the national interest in maintaining and recruiting qualified teachers. So, for example, we recently did a teacher case for someone with a specialty in special needs students.

I remember reviewing almost every case that came out of our office. So our associate attorney filed and prepared the case, and we did some creative research relating to the topic. We instantly found a lot of research on how that specific community–special needs children–during COVID suffered more than a lot of the other non-special needs children and the real importance behind it.

You want to always look at White House initiatives. Because linguistics isn’t necessarily listed, you must do your independent research and see, “Okay, Linguistics is kind of general. What specifically does this client do?” I mean, which language does the client speak? Is the client working? Is she working in academia? Is she a professor? We represent many professors, and you have to do a bit more research, but I do think that you could make a case out of that most likely.

Q: Can you share your experience with the conversion to EB2-NIW from the H1B and an F1(OPT)?

A: Yes, we’ve done both of those. One of our early cases was an OPT who didn’t get the H1B actually, and she was working for Lynn University. And she was working here in Florida and she was a music master’s, and I’m like, “’Well, music is in the book. Let’s try it.” And so we did, and it was a straight approval. So yes, you can definitely transition from OPT.

And when you talk to those clients, like, that are in the master’s program, timing is everything. So being in the master’s program is not enough. They need to complete the master’s program, then they should ideally be working under their OPT when you file for the EB2-NIW. Now and then going from H1B to EB2-NIW, the problem you might come across in both of those is proving whether or not the client deserves the balancing on why they’re not able to do a labor certification.

So when you have a business owner, that makes it easier on that specific argument saying, “Well, a business owner is not entitled to petition for himself on a labor certification,” but when our clients are gainfully employed under an H1B, for example, or OPT, you need to be sure that the client has already talked to their HR department about their labor certification. Because you can win everything else and fail simply on the balancing on “Well, why can’t you do a labor certification?”

Q: Why does the EB-2 threshold require an applicant to have exceptional ability in business rather than EB-1 needing extraordinary ability in business?

A: The EB-1 threshold is higher than the EB2. You have to prove that you’re at the very top of a tiny percentage of your field. For example, we had a Brazilian businessman–very successful; he had invested a lot of money here in the US, and he needed a green card for him to be able to continue what he was doing with his business.

He really needed to have permanent residency for some contracts and things he was trying to get. I told him, after looking at his resume, I thought he was more inclined toward EB2-NIW. He insisted on doing the EB-1a, extraordinary ability, and filing it with premium processing. We did that, and granted, this person was employing around 40 American workers at that time and has invested millions of dollars.

We did the EB-1a, and got a horrible RFE. They don’t give him a single point, which is ridiculous. We get a denial. We appeal the EB-1a, turn around and file the EB-2, straight approval in less than six months. I told him from the beginning that this was the better route for his case.

So, I would say extraordinary ability is always completely subjective. If your client has a business degree, especially, and they’re an entrepreneur, then I would probably go the EB-2 route all the way.

Q: Should the attorney prepare the business plan?

A: No, it’s very time-consuming, and it’s not our specialty, and when I talk to a client, I say, “There should be four people involved in your business plan: You with your business background; your accountant, which a lot of the times needs to be involved; your business plan provider, Joorney; and your attorney. We all need to work together to use our strengths to have a good, well-formatted, concise business plan.”

For example, I just sent Joorney a business plan where we’re trying to rescue a different type of case, an E-2. The business plan states that the client will be operating out of his home residence initially, which is impossible. 

It is setting your client up for failure. So, no, I would say don’t waste your time unless you also have a business degree and that is your passion, your specialty. Please give it to the experts, and you are there to guide and supervise it.

Thank you Carmen for accepting our invitation! Thank you, dear attendees!

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