Matter of Dhanasar Establishes New NIW Adjudication Standard

In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) vacates and replaces the 18-year-old 3-prong test for adjudicating national interest waiver (“NIW”) cases under INA §203(b)(2)(B)(i), as described in the landmark decision of New York State Department of Transportation (“NYSDOT”) in 1998.

 

The new NIW adjudication standard decided by the AAO in Dhanasar now requires the following:

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 labor certification requirements.

 

Dhanasar sets the new controlling standard for adjudicating EB-2 NIW cases. EB-2 petitions must typically include a labor certification showing that the employer has determined that there are no able, willing, and qualified U.S. applicants available. As a result, EB-2 petitioners must have an employer willing to advertise the position and meet the prevailing wage requirements. Further, if an available U.S. worker applies for the position, the petition will be denied regardless of the petitioner’s qualifications. However, under INA §203(b)(2)(B)(i), the labor certification requirements may be waived when it is deemed to be in the “national interest” to do so.

 

At first blush the new NIW standard outlined in Dhanasar appears to benefit both the foreign national petitioner and the United States by simplifying the process and eliminating ambiguous and subjective wording embedded within the old 3-prong test in NYSDOT. In Dhanasar, the AAO determined that the terms, such as “intrinsic merit,” “national in scope,” “national interest” and “adversely affected” in NYSDOT, created confusion for both petitioners and USCIS examiners. As a result, the AAO removed these terms from the new NIW adjudication standard, which sets forth a broader and more permissive 3-prong test that “shifts the focus from the proposed endeavor to the foreign national.” The new 3-prong test established by the AAO is a sharp contrast from the prior standard in NYSDOT.

 

Prong 1:

Prongs 1 and 2 from the old NYSDOT framework have now been streamlined and incorporated into prong 1 of the new NIW standard. Prong 1 in the old framework required petitioner to show employment in an area of “substantial intrinsic merit. The AAO eliminated the word “intrinsic” from the new NIW standard, finding it too subjective, now requiring that petitioners need only show that the proposed endeavor has “substantial merit.” This broader interpretation by the AAO allows petitioners to demonstrate “merit” without the burden of having to prove that the endeavor will have an “immediate or quantifiable economic impact.” As a result, petitioners can now demonstrate “substantial merit” without having to show that the endeavor will have a quantifiable economic impact as long as there is other evidence of its national importance.

 

Under the new NIW standard, the AAO has eliminated the requirement that the petitioner must show the proposed benefit is “national in scope.” Petitioners must now show that their endeavor has “significant potential to employ U.S. workers or has other substantial positive economic effects.” The new standard avoids “overemphasis on the geographic breadth of the endeavor” under the old framework. Under the first prong of the new NIW standard, the AAO instructs USCIS examiners to evaluate the “substantial merit and national importance” of the “specific endeavor that the foreign national proposes to undertake” rather than speculating on the geographical impact of the benefit. As a result, “substantial merit” and “national importance” can apply not only to traditional endeavors in science, but also to endeavors in business, entrepreneurialism, technology, culture, health and education. This improves the opportunity for petitioners in these other areas under the NIW category.

 

Prong 2:

Under prong 2, petitioners must now demonstrate that they are “well positioned to advance the proposed endeavor.” Under the old framework, petitioners were required to demonstrate “a past history of demonstrable achievement with some degree of influence on the field as a whole.” The AAO now instructs USCIS examiners to consider a wide range of factors that include but are 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; potential customers, users, investors, or other relevant entities or individuals.” Further, the AAO explains that petitioners are not required to show that their endeavors are more likely than not to succeed, rather that they are well positioned to advance the proposed endeavor by a preponderance of the evidence.

 

Prong 3:

Under prong 3 of the old NYSDOT test, petitioners were required to show that the national interest would be adversely effected if a labor certification were required. Essentially, petitioners needed to show that they would serve the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications. As a result, petitioners were required to submit evidence comparing themselves to unidentified U.S. workers. The AAO noted that this prong created confusion for both petitioners and USCIS examiners. The third prong of the new NIW standard strikes a balance between the interests of a labor certification process to protect U.S. workers and other factors deemed to be in the national interest. Petitioners need only show that it “would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” Further, this new test “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” This change improves the likelihood for self-employed individuals, and entrepreneurs to successfully petition under the NIW category.

 

Overall, it appears that the AAO has created a much clearer and more straightforward approach for petitioners applying under the NIW category. Particularly, entrepreneurs, self-employed individuals, and petitioners in the areas of business, culture, and education who had previously experienced great difficulty under the old NIW standard, now appear to have a much better likelihood for case approval.