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

  1. 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
  2. 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

YearDismissedSustainedRemandedTotal
20256 (—)006
202457 (96.6%)0259
202339 (86.7%)0645
202216 (—)0016
20218 (—)0311
20201 (—)001
20193 (—)014
20181 (—)001
20173 (—)003

Criteria Breakdown

CriterionIn DismissedIn SustainedTotalDismissal Rate
Prong 1: Substantial merit and national importance138014793.9%
Prong 2: Well positioned to advance the endeavor94010094.0%
Prong 3: On balance, waiver benefits the U.S.8709492.6%
Exceptional ability5205692.9%
Advanced degree3504185.4%
Motion to reopen/reconsider1902479.2%

Example Decisions

Dismissed2024-08-06The motion to reconsider was dismissed because the Petitioner failed to establish that the prior decision was based on an incorrect application of law or policy. The Petitioner did not address the previous finding that… Dismissed2024-07-31The appeal was dismissed for procedural and substantive reasons. The petitioner failed to submit the required Form ETA-750B with the initial petition, which the AAO noted was a sufficient reason for denial on its own.… Dismissed2024-07-23The appeal was dismissed because the petitioner failed to establish the 'national importance' prong of the Dhanasar framework for his proposed endeavor of developing a legal consulting firm. The AAO found the evidence,… Dismissed2024-06-10The motion to reconsider was dismissed because the petitioner failed to establish that the prior AAO decision was based on an incorrect application of law or policy. The petitioner's arguments conflated the 'substantial… Dismissed2024-05-23The appeal was dismissed because the petitioner failed to demonstrate eligibility for the underlying EB-2 classification as an individual of exceptional ability. Although the petitioner met three of the regulatory…
NYSDOT-era decisions (pre-2017)

Outcomes by Year

YearDismissedSustainedRemandedTotal
20134 (—)004
20113 (—)003
20102 (—)002
20092 (—)002
20081 (—)001
20071 (—)001
20050 (—)022
20012 (—)002

Criteria Discussed

CriterionIn DismissedIn SustainedTotal
National in scope (NYSDOT)10010
Intrinsic merit (NYSDOT)909
Substantially greater degree than U.S. worker (NYSDOT)808
Exceptional ability608
Advanced degree406
Motion to reopen/reconsider505
Prong 3: On balance, waiver benefits the U.S.101

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.

Filing your own EB-2 NIW? See how your CV maps to the criteria — free strategy preview.
Get Your Free Strategy Preview →