USCIS Establishes New Standard for EB2 National Interest Waiver Cases for Certain Individuals Whose Work is of National Importance

On December 27, 2016, U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), addressing the National Interest Waiver (NIW) standard affecting certain petitions for lawful permanent residence. In Dhanasar, the AAO vacated a previous decision, which had governed the standard for NIW petitions since 1998, and established a new framework. In Dhanasar, the AAO found that the previous framework was problematic, particularly for entrepreneurs and self-employed petitioners. The AAO mandated a new, more flexible and less restrictive test, that can be met in a range of ways and is meant to apply to a greater variety of individuals.

The EB2 NIW Permanent Residence Category

Foreign Nationals may be eligible for permanent residence under the Second Employment-Based Preference (EB2), if they are “members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”  Generally, the statute also requires a job offer from a sponsoring employer who must undertake the Labor Certification/PERM process in order to test the market for any able, willing, qualified and available U.S. workers. The purpose of this requirement is to protect U.S. workers by requiring employers to first test the market for available qualified workers. The statutory subsection addressing the NIW category allows the government to “waive” the job offer and Labor Certification/PERM requirements, if it would be in the national interest to do so. Therefore,  even individuals could “self-petition” for permanent residence, making this category highly desirable for entrepreneurs, self-employed individuals, individuals with multiple employers, and individuals whose employers are not willing undertake the Labor Certification/PERM process.

The Previous NIW Standard Under Matter of NYSDOT

In 1998, the legacy Immigration and Naturalization Service issued a precedent decision establishing a framework for evaluating NIW petitions: Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The NYSDOT framework first required the petitioner to show that the area of employment is of “substantial intrinsic merit.”  Next, NYSDOT required a petitioner to establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Finally, NYSDOT required the petitioner to demonstrate that the national interest would be adversely affected if a Labor Certification/PERM were required for the foreign national.  In Dhanasar, the AAO pointed out flaws in the implementation of the NYSDOT framework over the years and decided to revise that standard. In particular, it found that the third prong of NYSDOT has left room for misinterpretation and that the first and second prongs had to be restructured in order to more clearly describe the standard.

The New NIW Standard Under Dhanasar

In Dhanasar, the AAO vacated NYSDOT and adopted a new framework for adjudicating NIW petitions, one that the AAO believes would “provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.” Under the new framework, USCIS may grant an NIW if the petitioner demonstrates by a preponderance of the evidence:

  1. That the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In Dhanasar, the AAO provided additional guidance regarding the application of the above new framework. Among other things, it clarified that USCIS must not evaluate “national importance” based solely on geographic terms: “Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.” Further, in order to determine if the foreign national is “well positioned to advance the proposed endeavor,” the AAO would consider factors including, but not limited to: “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” With respect to the third prong of the new test, the AAO clarified that USCIS may consider factors such as: “whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.” The AAO emphasized that in each case, the factors must be considered together.

NIW applications are complex matters that require extensive legal and factual analysis. It is important for prospective applicants to seek advice and assistance from experienced immigration counsel.

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