Understanding the Legal Authorities Used in an EB-2 NIW Petition

When preparing your EB-2 NIW petition, it is important to understand that Matter of Dhanasar is not the only relevant precedent. Dhanasar establishes the three-part NIW test, but USCIS also relies on other decisions that govern how you must prove your claims, use expert opinions, address inconsistencies, and establish eligibility as of the filing date.

Matter of Dhanasar - the NIW standard

Matter of Dhanasar establishes that you must show

1. Your proposed endeavor has substantial merit and national importance;
2. You are well positioned to advance the endeavor; and
3. On balance, it would benefit the United States to waive the job offer and labor certification requirements.

Your petition must clearly explain what you intend to do, how you will carry out the endeavor, and why its potential impact extends beyond the ordinary benefit to one employer or client.

It is not enough to show that your industry or profession is important. You must establish the importance of your specific proposed endeavor.

Matter of Chawathe - your burden of proof

Matter of Chawathe explains that you must establish eligibility by a preponderance of the evidence. This means you must show that your claims are more likely than not true.

USCIS will consider whether your evidence is relevant, credible, reliable, and persuasive. The number of exhibits is less important than whether the evidence directly supports the claims made in your petition.

Your petition should therefore be supported by a clear and reliable evidentiary record, not only persuasive drafting.

Matter of Soffici - unsupported claims are insufficient

Matter of Soffici establishes that simply stating a fact does not prove it.

Claims involving project impact, financial savings, revenue, implementation, leadership, business funding, job creation, user numbers, or industry adoption should be supported by documentary evidence when reasonably available.

Your personal statement, resume, business plan, or recommendation letters may explain these claims, but they should not be the only evidence supporting them.

Matter of Obaigbena and Matter of Ramirez-Sanchez - legal arguments are not evidence

Matter of Obaigbena and Matter of Ramirez-Sanchez establish that the statements of counsel do not constitute evidence.

The petition brief may explain the law, organize the exhibits, and show how the evidence satisfies Dhanasar. However, it cannot establish a factual claim simply by stating it.

For example, if the petition states that you led a significant project or produced measurable savings, the record should contain evidence supporting your role and the claimed result.

The brief should explain the evidence. It should not replace missing evidence.

Matter of Caron International — expert opinions are not controlling

Matter of Caron International explains that USCIS may consider expert opinions from qualified professionals, universities, or professional organizations. However, USCIS is not required to accept an expert’s conclusions.

An expert opinion may receive limited weight if it lacks a factual basis, repeats the petition’s claims, relies mainly on information supplied by you, conflicts with other evidence, or does not explain the expert’s reasoning.

A strong expert letter should explain:

• The expert’s qualifications;
• The expert’s basis of knowledge;
• The documents reviewed;
• The facts supporting the opinion; and
• Why those facts are significant to your field or proposed endeavor.

Expert letters are most useful when they explain the significance of documented evidence. They should not be used as the sole proof that an achievement, result, or implementation occurred.

Matter of Ho - inconsistencies can damage the petition:

Matter of Ho explains that inconsistencies may cause USCIS to question the reliability of the record as a whole.

Your resume, personal statement, recommendation letters, expert opinions, business plan, and petition brief should be consistent concerning material facts, including:

• Employment dates;
• Job titles;
• Project roles;
• Metrics;
• Degree information;
• Business information; and
• The description of your proposed endeavor.

Material discrepancies should be corrected before filing. When an inconsistency exists, it should be explained and supported by independent, objective evidence.

Matter of Katigbak - eligibility must exist when you file

Matter of Katigbak establishes that you must be eligible when the petition is filed.

You generally cannot rely on a degree, required experience, qualification, business, or proposed endeavor that first arose after filing to create eligibility.

However, evidence created after filing may still document facts that already existed. For example, a later employer letter may verify pre-filing work, and a later expert opinion may evaluate achievements that occurred before filing.

The important question is whether the evidence confirms eligibility that already existed or attempts to create eligibility through later events.

Matter of Izummi - you cannot materially change the petition after filing

Matter of Izummi establishes that you cannot materially change a deficient petition after filing to make it approvable.

This is especially important when responding to an RFE. You may clarify the original endeavor, provide additional detail, and submit evidence supporting facts that already existed. However, you should not replace the original endeavor with a substantially different one.

A material-change issue may arise if the response changes your profession, core activities, target industry, business model, basis for national importance, or overall factual theory.

Matter of Katigbak and Matter of Izummi work together. Katigbak requires your eligibility to exist when you file. Izummi prevents you from creating eligibility through a materially different petition after filing.

Practical impact on your petition

When preparing your petition, I will need to ensure that

• Your proposed endeavor is clearly defined;
• Each Dhanasar prong is supported by reliable evidence;
• Material claims are properly documented;
• Your resume, letters, plans, and petition brief are consistent;
• Expert opinions are based on documented facts;
• Your eligibility existed when the petition was filed; and
• Any later clarification does not materially change the original petition.

Matter of Dhanasar provides the substantive NIW test. The other authorities explain how USCIS evaluates your evidence and whether you have properly established eligibility.

A strong NIW petition therefore requires both a sound legal argument and a consistent, well-supported evidentiary record.