US Immigration EB-2 NIW green card not always a slam-dunk!

September 2021

By Dianne Stewart - President, PathwayUSA, Charlotte, NC, USA


So you're a pilot with ATP and possibly even FAA certification? You've been told you can self-petition for an EB-2 National Interest waiver? That you don't need a job-sponsor? Not always the case. As the old adage says "If it sounds too good to be true, it probably isn't!"

EB-2 green cards for well-qualified pilots are realistically attainable if you have a job sponsor. And possibly also EB-3 green cards. However, to self-petition without a job-sponsor, under the NIW program, may just be a little 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 specifically requiring the self-petitioner to demonstrate that :

Your proposed endeavor has both "substantial merit" and "national importance", and
You are "well-positioned" to advance the proposed endeavor, and
On balance, it would be beneficial to the United States to waive the job offer and labor 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 favorably considered in a pilot's petition. It is accordingly essential that you have a close and 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, something that will have a substantially 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 specialized 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.
The NIW is not warranted to ease a labor shortage, like a pilot shortage.

While your 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 follow a traditional reliable immigration process. And to view the NIW only for rare and exceptional circumstances that can be supported with overwhelming factual evidence. Indeed, 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 authorization is 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.

SPECIAL EVENT : PathwayUSA will be presenting a free seminar in Dubai on Monday, September 27, 2021 at 19:00 21:30 pm in the Viral room at the Media One Hotel, Media 1 Tower, Plot No.1 Al Falak St - Al SufouhAl Sufouh 2, Dubai, UAE.

Registration is required to attend. A full questionnaire must be completed for security and Covid-19 compliance's and in order to serve you better.

Visit to register.

Private one-on-one appointments also available upon request.

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.

We can help you!

Relocating to a new country like the USA can be a minefield of choices and decisions. PathWay USA takes the angst out of these important decisions ...
Find out more
Dianne Stewart