On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”
The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “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.” In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”
Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.
The new decision reached in Dhanasar, will invalidate the prior AAO landmark decision reached in Matter of New York State Department of Transportation (NYSDoT), a case which governed the adjudication of national interest waivers since 1998, and broaden the population eligible for a national interest waiver. The NYSDoT decision has been widely criticized for being extremely restrictive and making the possibility of attaining a national interest waiver extremely difficult for foreign nationals working outside of a STEM field.
The test of eligibility under NYSDoT established the following three-prong framework:
- A petitioner had to show that the area of employment was of “substantial intrinsic merit”
- A petitioner was required to establish that any proposed benefit from the individual’s endeavors would be “national in scope”
- The petitioner was required to demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.
The new AAO decision in Matter of Dhanasar will invalidate and replace the three-prong test established by Matter of New York State Department of Transportation for a more flexible standard that will allow a broader population of foreign nationals in the EB-2 category to qualify for the discretionary national interest waiver. Under the new test, the EB-2 petitioner must meet all criteria established by the new test by a preponderance of the evidence. This standard of proof establishes that the requirements must be proven by evidence that is the most convincing, and not by sheer volume of evidence. USCIS must determine whether on the whole the petitioner demonstrated by strong evidence that the requirements for the discretionary waiver were met. This standard of proof is therefore more flexible since it only requires the evidence to be convincing.
The NEW three prong-test established by Matter of Dhanasar is as follows:
- The foreign national’s proposed endeavor must have both substantial merit and national importance. Dhanasar indicates that under this first criterion, a wide number of employment fields may qualify for a discretionary waiver such as: business, entrepreneurialism, science, technology, culture, health and education. Dhanasar does not require that the petitioner show that the endeavor will bring immediate or quantifiable economic benefit to the United States. Providing such evidence however may help meet the preponderance of the evidence standard to the petitioner’s benefit. Under this criterion, the petitioner is still required to show that the proposed endeavor has “national importance,” or is “national in scope” as in Matter of New York State Department of Transportation. Endeavors that may be considered as being national in scope are those that have a significant potential impact for job creation or substantial potential for economic growth, and which are focused in an “economically depressed area” such as an area of unemployment, or economically disadvantaged region.
- The foreign national must be well positioned to advance the proposed endeavor.This criterion will be analyzed by assessing the foreign national’s education, skills, knowledge and proven record of success in related or similar efforts. Other ways in which this prong can be proven is by providing a model, diagram, or plan for future activities, evidence of progress in reaching the endeavor, and evidence demonstrating interested stakeholders. The petitioner does not need to assess whether the endeavor will succeed.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. In assessing this prong, the endeavor’s importance will be weighed against the national interest and be based upon the overall benefit the United States will receive from the foreign national’s contributions. USCIS may also consider other factors to determine whether granting the discretionary waiver would be beneficial to the United States taking into consideration whether there are any qualified U.S. workers who can undertake the endeavor, and whether there is a sufficient national interest to justify a waiver of the job offer and labor certification requirement.
The new three-prong test established by Matter of Dhanasar is a very exciting and progressive step in the right direction for the EB-2 category. The previous national interest waiver standard made it very difficult for entrepreneurs to obtain the benefit of foregoing the job offer and labor certification requirement. We expect that with this new flexible standard, many more foreign nationals will become eligible for the national interest waiver. Although the process is discretionary in nature, petitioners will now be able to demonstrate their eligibility by a preponderance of the evidence, providing strong and convincing evidence that their employment is of national importance.
To read more about the national interest waiver please click here.