National Interest Waivers – A Game Changer

The recent decision from the Administrative Appeals Office in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) provides a welcome overhaul of the analytical framework governing National Interest Waivers (NIW). Summarily stating that “we believe that it is now time for a reassessment” the AAO threw out nearly two decades of precedent and handed down new criteria by which NIW’s should be assessed by USCIS. And the good news is that this new framework is not only more intelligible, but it is likely to result in many more approvals for a broader spectrum of applicants than was previously the case.

Some brief context: Most employment-based applications for lawful permanent residency in the U.S. (aka “Green Card”) must begin with the dreaded PERM process, which requires the Department of Labor to certify that no U.S. worker is essentially ready, willing and able to assume the position for which the foreigner is being sponsored. As anyone who has gone through this headache — whether as an employer or as a beneficiary — already knows, this is a tedious, exacting and unforgiving process that most people would prefer to avoid. Fortunately, 8 U.S.C. Section 203 (b)(2)(A) carves out an exception to this requirement for individuals in the EB-2 category (those holding an advanced degree), stating that the Secretary “may, when the [Secretary] deems it to be in the national interest, waive the requirements” of the PERM process. This allows qualified individuals to both self sponsor (ie., a job offer is not required), and to avoid proving that no U.S. worker is available to provide the same services. For more than two decades, what constitutes the “national interest” for purposes of this section was governed by the 3-part test laid down in Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). Until now.

It would be redundant for me to spend time describing the previous framework under NYSDOT. Suffice it to say that this precedent proved to be fertile ground for many conflicting precedents, much confusion on the part of prospective applicants and just as much frustration on the part of their attorneys. The AAO recognized as much in Matter of Dhanasar, stating that based upon the Agencies own experience it was “now time for a reassessment.” And it went on to articulate a new NIW standard that it believes will provides greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States. Under the new framework laid down in Matter of Dhanasar “after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

The foreign national’s proposed endeavor has both substantial merit and national importance.
The foreign national is well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification [PERM].”

Prong #1 requires substantial merit and national importance, but the framework now focuses on the “specific endeavor” that the foreign national proposes to undertake, and specifically provides that “substantial merit may be demonstrated in a range of areas such as business, entrepreneurship, science, technology, culture, health, or education.” Moreover, the AAO noted that while “immediate or quantifiable economic impact” of the endeavor would be favorably regarded for the purpose of showing “substantial merit,” it was not required. The agency pointed to endeavors such as research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

To determine whether the proposed endeavor has “national importance,” the AAO stated that it considers its “potential prospective impact.” It noted that an undertaking “may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.” Taking aim directly at one of the most oft-cited criticisms of NYDOT, the court stated “we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance… In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

Dhanasar’s prong #2 requires that the foreign national demonstrate that he or she is well positioned to advance the proposed undertaking, and thereby “shifts the focus away from the proposed endeavor and onto the foreign national.” The AAO stated that it “will 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.” In recognition of the challenges presented in attempting to forecast feasibility or future success, the AAO stated that it will not be require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, “petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.”

Dhanasar’s prong #3 “requires the petitioner to demonstrate that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification.” In a nod to concerns about the domestic labor market, the AAO recognized the intent of Congress to further the national interest by requiring job offers and labor certifications [PERM’s] to protect the domestic labor supply. But, on the other hand, the agency noted that Congress also created the NIW because it recognized that “in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest.” Under this prong, these two interests must now be balanced within the context of individual NIW adjudications.

For the purpose of this balance, the agency noted that “USCIS may evaluate 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 U.S. 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 considered “must, taken together, indicate 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.” The AAO stated that unlike the third prong in NYSDOT, this new prong “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.”

On its face, Matter of Dhanasar provides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW. Notably, the decision clearly opens the door for more entrepreneurs to qualify for NIW. Under the old regime, many entrepreneurs struggled to show that local employment would provide a benefit that was national in scope. And under Dhanasar’s prong #1, they will no longer have to contend with this difficulty. Instead, an entrepreneur could simply demonstrate that the proposed endeavor has significant potential to employ U.S. workers.

It must be stated that even under the new framework, assembling NIW petitions will require significant skill and experience. But this decision opens the door to lawful permanent residency for individuals involved in a wider range of endeavors who would have likely failed to qualify under the NYSDOT standard.

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