Can lawyers get an EB-2 NIW? What 146 AAO decisions say
Published AAO non-precedent decisions, 2017–2025 · updated 2026-10-16
Between 2017 and 2025 the AAO published 146 EB-2 NIW appeal decisions from law petitioners and sustained none of them. The most common ground for dismissal: proposed endeavor not shown to have national importance (94 of the 130 merits dismissals, 72%). Second: advanced degree or exceptional ability not established (27, 21%). These are appeals of denials, not all adjudications, so the dismissal rate is not an initial-filing approval rate; it shows which arguments the AAO rejected on appeal and which it accepted.
What the decisions say
Grounds for dismissal, by frequency
- 94 of 130 Proposed endeavor not shown to have national importance
“The AAO found that her plan to provide legal consulting on Brazilian tax law did not demonstrate broader implications or a national impact beyond her own business and clients.” AAO, 2023
- 27 of 130 Advanced degree or exceptional ability not established
“The AAO found that the petitioner's bachelor's degree in accounting was not in the specialty of his proposed endeavor of police investigation, so he did not qualify as an advanced degree professional.” AAO, 2023
No EB-2 NIW appeal from law petitioners was sustained in this period. The record shows what did not work; it does not show what would.
Outcomes by Year
| Year | Dismissed | Sustained | Remanded | Total |
|---|---|---|---|---|
| 2025 | 6 (—) | 0 | 0 | 6 |
| 2024 | 57 (96.6%) | 0 | 2 | 59 |
| 2023 | 39 (86.7%) | 0 | 6 | 45 |
| 2022 | 16 (—) | 0 | 0 | 16 |
| 2021 | 8 (—) | 0 | 3 | 11 |
| 2020 | 1 (—) | 0 | 0 | 1 |
| 2019 | 3 (—) | 0 | 1 | 4 |
| 2018 | 1 (—) | 0 | 0 | 1 |
| 2017 | 3 (—) | 0 | 0 | 3 |
Criteria Breakdown
| Criterion | In Dismissed | In Sustained | Total | Dismissal Rate |
|---|---|---|---|---|
| Prong 1: Substantial merit and national importance | 138 | 0 | 147 | 93.9% |
| Prong 2: Well positioned to advance the endeavor | 94 | 0 | 100 | 94.0% |
| Prong 3: On balance, waiver benefits the U.S. | 87 | 0 | 94 | 92.6% |
| Exceptional ability | 52 | 0 | 56 | 92.9% |
| Advanced degree | 35 | 0 | 41 | 85.4% |
| Motion to reopen/reconsider | 19 | 0 | 24 | 79.2% |
Example Decisions
NYSDOT-era decisions (pre-2017)
Outcomes by Year
| Year | Dismissed | Sustained | Remanded | Total |
|---|---|---|---|---|
| 2013 | 4 (—) | 0 | 0 | 4 |
| 2011 | 3 (—) | 0 | 0 | 3 |
| 2010 | 2 (—) | 0 | 0 | 2 |
| 2009 | 2 (—) | 0 | 0 | 2 |
| 2008 | 1 (—) | 0 | 0 | 1 |
| 2007 | 1 (—) | 0 | 0 | 1 |
| 2005 | 0 (—) | 0 | 2 | 2 |
| 2001 | 2 (—) | 0 | 0 | 2 |
Criteria Discussed
| Criterion | In Dismissed | In Sustained | Total |
|---|---|---|---|
| National in scope (NYSDOT) | 10 | 0 | 10 |
| Intrinsic merit (NYSDOT) | 9 | 0 | 9 |
| Substantially greater degree than U.S. worker (NYSDOT) | 8 | 0 | 8 |
| Exceptional ability | 6 | 0 | 8 |
| Advanced degree | 4 | 0 | 6 |
| Motion to reopen/reconsider | 5 | 0 | 5 |
| Prong 3: On balance, waiver benefits the U.S. | 1 | 0 | 1 |
Sample: published AAO non-precedent decisions collected from uscis.gov. EB-2 NIW statistics reflect the Dhanasar framework era (2017–2025); the prior NYSDOT framework applied different legal standards. These are appeals, not all USCIS adjudications; approval rates here are not initial-filing approval rates. Read our full methodology.
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