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USCIS Modernizes Requirements for National Interest Waivers


Tuesday, January 10, 2017

In a precedent decision issued last week, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the USCIS Administrative Appeals Office (AAO) announced a new analytical framework for determining whether a foreign national pursuing employment-based permanent residence in the EB-2 category is eligible for a discretionary waiver of the job offer and labor certification requirements in the U.S. national interest. 
 
The decision is intended to make the national interest waiver (NIW) more broadly available to foreign nationals pursuing endeavors that benefit the United States, including those involved in entrepreneurial and self-employed ventures.
 
Until Matter of Dhanasar, NIWs have been adjudicated under Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec.215 (Accting Assoc. Comm’r 1998), which set forth an oft-criticized and highly discretionary 3-prong eligibility test. The Dhanasar decision ultimately names the third prong of the NYSDOT framework (“the national interest would be adversely affected if a labor certification were required”) to be the most problematic triggering a revision of the old framework. First, the AAO explains, the third prong is ill-explained within the NYSDOT case, providing too many alternate requirements “leaving the reader uncertain what ultimately is the relevant inquiry.”  Second, the concepts laid out in the third prong of NYSDOT have proven to be difficult to establish or analyze as they can be misinterpreted to require the petitioner to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego – evidence of harm to the national interest and evidence comparing foreign nationals to unidentified U.S. workers.
 
Beyond the specific analysis of the 3-prong NYSDOT test, the AAO in Dhanasar further acknowledges the fact that there are certain occupations where individuals are essentially self-employed with no U.S. employer to apply for a labor certification – ultimately finding the NYSDOT test to be ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs, and others with unique knowledge or skills not easily articulated in a labor cert.  
 
Based on their analysis of the previous framework, in Matter of Dhanasar, the AAO vacates the NYSDOT test and replaces it with what most practitioners are calling a much clearer standard for adjudicating national interest waiver petitions.  
 
To be eligible for a national interest waiver under the new test, an EB-2 petitioner – either the foreign national or an employer –  must meet all of the following criteria:

1.  The foreign national’s proposed endeavor has both substantial merit and national importance. A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health and education.  

2.  The foreign national is well positioned to advance the proposed endeavor. To determine whether the foreign national meets this prong of the test, USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor and the interest of potential customers, users, investors or other relevant entities or individuals.

3.  On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category.  To meet this prong of the test, USCIS will, among other factors, consider whether the United States would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. If a foreign national satisfies these criteria, under the preponderance of the evidence legal standard (“more likely than not”), USCIS may grant a national interest waiver. This assumes, of course, that Subparagraph (A) of Section 203(b)(2) of the Act has already been satisfied and that the beneficiary qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business (See 8 C.F.R. Section 204.5(k)(1)-(3) providing definitions and considerations for making such determinations). Note that because the NIW is purely discretionary, the petitioner must also show that the foreign national otherwise merits a favorable exercise of discretion.
 
Of particular note, Dhanasar provides the following interesting points:
  • “Merit” may be established without immediate or quantifiable economic impact. The AAO cites the example that endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefit for the United States.
  • When evaluating “national importance”, the AAO considers potential prospective impact, however this will not solely be evaluated in geographic terms (as it was in its previous iteration in the NYSDOT test as “national in scope”.) For example, in Dhanasar, the AAO states that an endeavor that has the potential to employ U.S. workers in an economically depressed area, may well be considered to have “national importance”.
  • Recognizing that, despite competent execution, some innovations or entrepreneurial endeavors may fail, and that forecasting future success presents challenges to both petitioners and USCIS officers alike, in its discussion of the newly adopted second prong, the AAO states that a successful petition does not require petitioners to demonstrate that their endeavors are more likely than not to succeed, but only that they are “well positioned to advance the proposed endeavor.”   
  • Neither a showing of harm to the national interest, nor a comparison against U.S. workers in the petitioner’s field, is required, as each proves problematic for certain petitioners such as entrepreneurs and self-employment individuals.
All in all, the Dhanasar decision provides greater clarity and allows flexibility for both petitioning employers and self-petitioning individuals. It is a step in the right direction, further opening the doors of the NIW category to other occupations and endeavors that are beneficial to the United States, particularly for entrepreneurs and self-employed individuals in the areas of business, technology, culture, health, and education.  
 
For assistance with exploring your eligibility for a national interest waiver, please contact the SIL attorney you are working with, or for more general inquiries, please contact us at info@sostrinimmigration.com

21700 Oxnard Street, Suite 860, Woodland Hills, CA 91367 T 818.435.3500 F 818.435.3535 info@sostrinimmigration.com