On December 28th, 2016 the Administrative Appeals Office issued a decision in Matter of DHANASAR that has changed the landscape for National Interest Waiver cases. This is of major importance as the National Interest Waiver is one of only two self-sponsored applications and many scientists, researchers, entrepreneurs, and others use this application to obtain Permanent residence in the US. In order to explain how this decision has changed the landscape, it is first important to understand what the previous standard was.
Under the Immigration and Naturalization Act, there are five Employment Based Immigrant Visa Levels. Each level can have several categories. The National Interest Waiver is laid out in the Second Level (EB-2) in section 203(b)(2) of the act. Under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, "may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” (See INA Section 203(b)(2)).
As can be seen, this does not provide much, if any, guidance on how USCIS should proceed in these types of cases. USCIS did not help matters when it passed its regulations in this area. All USCIS did was copy the language of the above statute verbatim. It was the AAO that ended up defining how to show that your services are in the national interest. The AAO did this in a case called In Re: New York State Department of Transportation (NYSDOT). In that case the AAO laid out a three-part test:
Show that the area of employment is of "substantial intrinsic merit".
Show that any proposed benefit from the individual's endeavors would be "national in scope".
The petitioner must demonstrate that "the national interest would be adversely affected if a labor certification were required for the foreign national."
In deciding to relook at this framework, the AAO stated that they felt that there has been confusion, especially as to the third prong, about how to demonstrate the above three prongs. In addition, the AAO felt that this confusion has caused USCIS to be too narrow in the cases it has approved. More specifically, the AAO seemed to feel there were two main issues. First, in terms of the national in scope, the AAO wanted to make clear that this was NOT a geographic issue. Instead, it is an issue of national importance. Second, in looking at the third prong, too much emphasis has been placed on requiring a showing of harm to the national interest if the application is not approved as well as too much emphasis on showing influence on the field and using that as a yardstick to determine if a person meets the standard. Because of the above, the AAO decided to reformulate the above test.
New Test in Matter of DHANASAR:
Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver 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; 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
That the foreign national’s proposed endeavor has both substantial merit and national importance;
That the foreign national is well positioned to advance the proposed endeavor; and
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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
We are happy to discuss how this new test is implemented by USCIS with you on an individual basis. Please click the contact us button below.