The Situation
My client was a portrait painter, a highly sought-after craftsman (his word) whose work commanded serious fees from patrons drawn from the uppermost tier of American politics, public life, and business. He had built his reputation and a body of work that appeared in respected private and public collections.
For years he had been on an O-1. Status extensions, visa renewals, and the constant administrative overhead of maintaining nonimmigrant status had worn his patience thin. His business in the United States was lucrative, and he wanted permanent residence for himself and his wife.
He had previously filed an EB-1A immigrant petition himself, prepared and argued by a non-lawyer friend. It was denied for predictable reasons. Among other things, the failed petition reached for past evidence that no longer existed and asked USCIS not to use the lack of evidence against him. I picked up the case from there.
How do you style a compelling self-petition for a portrait painter who is extremely successful but practically unknown to the general public?
The Strategy
My first decision was to abandon the EB-1A altogether as the bar was set too high and practically unachievable. Instead, I turned to EB-2 exceptional ability with a National Interest Waiver, the only feasible option remaining. Exceptional ability considerably lowers the bar, and the waiver offers a pathway for those whose work does not fit neatly into the usual checklists or does not fit at all.
The petition addressed each of the EB-2 exceptional ability criteria in turn: academic credentials from a renowned fine arts institution, years of full-time professional practice, merit-based membership in his national artists’ union, and letters from prominent experts in the American fine arts community who could speak to his standing in the field. The regulation lists six possible criteria and requires three. See 8 C.F.R. § 204.5(k)(3)(ii). His commissions were expensive enough to meet the remuneration criterion on the numbers alone, documented by his price lists and letters from patrons confirming payment. None of the exceptional ability evidence was weak. The challenge was the national interest argument.
A Portrait of the National Interest
I had to paint a realistic portrait anchored in the regulations and the colors of the guiding precedent, one that was distinctive. The national interest waiver was then governed by Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), the standard Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), has since replaced. To meet its requirement that the benefit be national in scope, I geotagged his U.S. patrons across multiple states, a practical demonstration that his work was not regionally concentrated but genuinely nationwide in reach. I then argued for the national interest through extensive expert testimony, addressing the cultural significance of portrait painting as a documentary art form, the preservation of national heritage and the historical record, and the value of his continued work to American cultural life. His sitters were consequential people. Their standing made those claims credible. That made the work itself consequential.
I also argued that the ordinary labor certification requirement served no purpose here. A labor certification rests on an offer of permanent, full-time employment by an employer other than the applicant, and a self-employed painter cannot supply one. See 20 C.F.R. § 656.3. Nor was there a specific position a U.S. worker could apply for: painters of comparable skill and experience are few, and those few are themselves self-employed, each with his own clientele, so the grant of a waiver displaced no one.
The Result
The NIW was approved in just under five months (premium processing for such cases was unavailable at the time). A self-petition for exceptional ability in the arts, won by a self-employed artist on that timeline, was the kind of result my peers called unbelievable.
Ars longa, vita brevis, indeed.