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EB-2 NIW Approval for a Self-Employed Wrestling Coach of Exceptional Ability

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EB-2 NIW Approval for a Self-Employed Wrestling Coach of Exceptional Ability
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22 January 2021

The Situation

My client was an Olympic champion wrestler. He had won at the highest level the sport offers, and he had translated that achievement into a successful second career as a coach, running his own wrestling school in the United States and producing an extraordinary number of champions at every level of competition.

He had been in the United States for many years — long enough to have built a life, raise two U.S. citizen children, and develop a coaching practice that drew students from multiple states. He had held F-1, H-1B, and O-1 status at various points, each requiring its own renewal process, its own fees, and its own bureaucratic uncertainty. He and his wife wanted permanent residence, and they had retained another immigration law firm to pursue an EB-1A extraordinary ability petition on his behalf.

That petition was denied. The denial turned on a distinction that, in retrospect, was both foreseeable and avoidable: the USCIS concluded that the evidence of extraordinary ability pertained to my client as an athlete, not as a coach, and that the two were distinct occupations for purposes of the petition. Since the petition sought permanent residence as a coach — not as a retired athlete — the extraordinary ability evidence did not transfer cleanly. It was a logical if frustrating outcome.

When my client brought the case to me, I told him what I was going to do and why. A senior partner at one of the largest immigration law firms in the country, when I described my strategy over lunch, told me it would never work. I filed the petition anyway.

The Strategy

I decided to file an exceptional ability NIW under the Matter of New York State Department of Transportation criteria. The EB-2 exceptional ability standard is lower than EB-1A extraordinary ability — it requires demonstrating a degree of expertise significantly above that ordinarily encountered in the profession, rather than placing the petitioner among the very top of their field. And the NIW waiver mechanism allowed my client to self-petition without the need for a sponsoring employer.

The NIW framework required me to address two distinct issues: the national scope of my client's employment as a coach, and the national interest justification for waiving the labor certification requirement.

On national scope, the evidence was actually quite strong once it was properly organized and presented. My client's students came from New Jersey, New York, Connecticut, Pennsylvania, and other states — they were not local kids from a single neighborhood. He had produced U.S. national champions who went on to train and compete throughout the country. His students regularly went on to college and university wrestling programs across the United States, including at Columbia, Brown, Penn State, Lehigh, Hofstra, Rutgers, and Maryland. Members of the U.S. national wrestling team had trained under his direction. College and university coaching programs and private clubs throughout the country sought his consulting expertise. The national scope argument was, in the end, a matter of assembling and presenting evidence that already existed.

The National Interest Argument

The national interest argument was more nuanced, and it is where I believe the case was ultimately won.

I began with the self-employment issue. My client ran his own private wrestling school. In the context of a conventional permanent labor certification — the process by which an employer demonstrates that no qualified U.S. worker is available to fill the position — self-employment is a bar. Under 20 C.F.R. § 656.3, a qualifying job offer for purposes of labor certification must be an offer of permanent, full-time employment by an employer other than the applicant. Self-employed individuals cannot, by definition, satisfy this requirement. A labor certification was not just inconvenient — it was categorically unavailable. That alone supported the waiver.

But I went further. I argued that even if a labor certification were theoretically possible, the existing mechanism provided no meaningful way to evaluate and prefer the most qualified coaching candidates. Labor certification requires a prospective employer to demonstrate that no qualified U.S. worker is available — but it does not require anyone to prove that the foreign worker is better than the U.S. workers who applied. A U.S. coach with a coaching certificate and five years of experience would, under the conventional framework, appear equally qualified on paper as an Olympic champion who had spent decades producing national champions at his own school.

I argued that a proven record of achievement — the kind of demonstrable, measured success that distinguishes an elite coach from a competent one — could not be evaluated or given appropriate weight in a standard labor certification context. My client's record as a coach was not a credential that could be reduced to a checklist. It was a body of evidence: 2 national champions, more than 20 state champions, numerous regional and district champions, athletes who had earned scholarships at prominent universities, and a coaching reputation that drew students from across the country. That record distinguished him from his otherwise qualified U.S. colleagues in ways that the labor certification process was never designed to capture.

Finally, I argued that my client's work already benefited far more U.S. workers — in this case, the athletes and competitors he trained and developed — than the labor certification process could conceivably protect in his particular situation.

The Result

The NIW was approved in 27 days. My client and his wife obtained their green cards, and he continues to run his wrestling school and produce champions.

Unconventional occupations are not disqualifying in NIW petitions. They require unconventional arguments, built carefully on the existing framework. A skeptical senior partner at a large firm told me this would never work. Twenty-seven days.

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