New Adjudication Standard for NIW petitions – A More Flexible Framework

In a precedent decision issued on December 27, 2016, U.S. Citizenship and Immigration Services’ (USCIS’) Administrative Appeals Office (AAO) announced a new analytical framework for determining whether a foreign national is eligible for a national interest waiver (NIW) under the EB-2 category. The decision known as Matter of Dhanasar is intended to make the waiver more broadly available to foreign nationals pursuing endeavors that benefit the United States.

 

Since 1998, national interest waivers have been governed by a prior AAO decision, Matter of New York State Department of Transportation (NYSDOT), which established a restrictive test of eligibility. Under the NYSDOT’s rigid framework, it was difficult for foreign nationals to obtain NIWs, which seemed to be reserved for STEM fields only.

 

The new AAO decision vacates the NYSDOT test and replaces it with a more flexible standard. According to the revised three-prong test established in the Dhanasar decision, NIW petitioners must now establish that:

(i) the foreign national’s proposed endeavor has both substantial merit and national importance;

(ii) the foreign national is well-positioned to advance the proposed endeavor; and

(iii) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

 

Below is a comparison of the previous and new standard for NIW adjudication, which shows how the new standard under the Dhanasar decision is more flexible and gives more leeway for both petitioners and adjudicators. The new standard opens up avenues for entrepreneurs, entertainers, and other non-research related occupations.

First Prong

The AAO removed the term “intrinsic” which was susceptible to unnecessary subjective interpretation. The applicable standard under the Dhanasar framework is that the foreign national’s proposed endeavor must have both substantial merit and national importance.

 

A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, arts, health and education. Under this prong, the petitioner is not required to show that the endeavor will bring immediate or quantifiable economic benefit to the United States. However, evidence to show the endeavor’s potential to benefit the U.S. economy is a favorable factor.

 

The petitioner must show that his or her proposed endeavor has “national importance,” which may include local or regional endeavors. An endeavor that has potential to employ U.S. workers or has other positive economic effects, e.g. in an economically depressed area, may be considered as having national importance under Dhanasar.

 

Second Prong

 

Under the previous standard, the foreign national needed to demonstrate that his or her work would have a benefit that is “national in scope.” The AAO removed this “national in scope” requirement because it tended to be construed too narrowly by focusing on the geographic impact of the benefit. Under Dhanasar, the second prong requires the foreign national to demonstrate that he or she is well positioned to advance the proposed endeavor. This can be demonstrated through various ways, including (without limitation) through a record of success or accomplishments in the field, awards and recognitions, original contributions, education, skills, progress toward achieving the endeavor, etc.

 

Although the second prong no longer refers to a “benefit”, this notion has been merged into the first prong (see above), which requires the endeavor to have both substantial merit and national importance. The petitioner is not required to show that the endeavor is more likely than not to ultimately succeed.

 

Third Prong

 

The third prong was amended substantially by the Dhanasar decision. The AAO noted that this prong had proven to be the most ambiguous to interpret for both petitioners and adjudicators. One of the issues highlighted by the AAO was that the third prong under NYSDOT suggested that petitioners should submit evidence comparing foreign nationals to unidentified U.S. workers. According to the AAO, these concepts had proven to be difficult for many qualified individuals to establish or analyze in the abstract. In addition, the AAO noted that “It has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.”

 

Under the new framework, the AAO has made it easier for self-employed individuals to qualify for a national interest waiver, since they are no longer required to submit evidence comparing themselves to U.S. workers, which can be challenging for entrepreneurs and self-starters.

 

Another important change that the AAO made to the third prong is the removal of the concept of “harm-to-national-interest.” According to the AAO, this requirement unnecessarily narrows the Secretary of Homeland Security’s broad discretionary authority to grant a waiver when he deems it to be in the national interest. As a result, USCIS should have more flexibility in granting NIW petitions from now on, which gives petitioners more options to prove that their work is in the national interest. Under Dhanasar, petitioners no longer have to show evidence of harm to the national interest if their petition is denied, which can be quite difficult to prove. Instead, they can now focus on how their endeavor contributes to the national interest, i.e. show that their work addresses concerns which are important to the nation (e.g. health, technology, environment, etc.). This is relatively easier to prove than the harm to the national interest.

 

Conclusion

 

The Dhanasar framework is a positive step toward broadening the availability of NIWs to eligible foreign nationals in various fields, not limited to STEM disciplines.

 

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If you have any questions about the National Interest Waiver, please contact Law Offices of Deacon Zhang for a case assessment, at one of our offices below.

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Disclaimer: The information provided above is of a general nature and does not constitute legal advice. You should always talk to a licensed attorney before making any decision about your case.