New EB-2 National Interest Waiver Standards Announced
Matter of Dhanasar Clarifies EB-2 National Interest Waiver Standards
In the last week of 2016, U.S. Citizenship and Immigration Services announced it will change the way that it decides EB-2 National Interest Waiver (“NIW”) cases. This decision is intended to make a waiver of the normal labor certification requirements—required for most employment-based immigrants—more broadly available.
By way of background, U.S. companies require the Department of Labor to certify that there are no U.S. workers willing, qualified and able to perform a particular position prior to sponsoring a foreign national to work in the position and obtain a Green Card based on the employment. However, the National Interest Waiver exists for those individuals whose endeavors in the U.S. are of such a “national interest” that they should not have to go through the labor certification process (which can take well over a year and is not guaranteed).
NYSDOT and the Previous NIW Standard
Since 1998, the standard for who qualifies for a national interest waiver was set by an Administrative Appeals Office (“AAO”) precedent decision, Matter of New York State Department of Transportation (“NYSDOT”). That precedent decision created a restrictive standard for determining national interest, and many highly qualified immigrants who would have benefitted U.S. society—including cancer researchers and job-creating entrepreneurs—were rejected. The new USCIS/AAO decision, Matter of Dhanasar, replaces the NYSDOT standard and in its place creates a more flexible approach. Going forward, an EB-2 petitioner (whether an employer or self-petitioning employee) must show: that the foreign national’s proposed endeavor has substantial merit and national importance; that the foreign national is well-positioned to advance the proposed work or project in the U.S.; and that it would be beneficial to the U.S. to waive the job offer & labor certification requirement, even if qualified U.S. workers are available.
Comparing NYSDOT and Matter of Dhanasar:
Under the NYSDOT framework, a National Interest Waiver could be granted if three prongs were satisfied: 1) that the foreign national’s work is national in scope; 2) that the foreign national’s work has intrinsic merit; and 3) that there are factors that outweigh the need to test the U.S. labor market through the labor certification process.
Prongs one and two of NYSDOT are not the ones that have caused the most confusion. Rather, prong three has caused inconsistency and confusion in the adjudication of EB-2 National Interest Waiver cases. The reason for the inconsistency stems from vague and inconsistent analytical interpretations by immigration attorneys and officers with respect to the third prong. Some officers require proving that the immigrant possesses EB-1-type outstanding abilities, while others require showing that going through the labor certification process is somehow impossible. The third prong is clarified in the new guidance.
The new procedures articulated in Matter of Dhanasar require proving the following: 1) that the foreign national’s proposed endeavor has both substantial merit and national importance; 2) that the immigrant is well-positioned to advance the proposed endeavor; and 3) that, on balance, it would be beneficial to the United States to waive the job offer and the labor certification application requirement.
The stated reason for the new analytical framework is to create clearer parameters for adjudicating NIW cases. The decision also recognizes that a wide range of fields of work may qualify; including business, science, tech, culture, education and entrepreneurship. Under the new standard, the petitioning company or employee are not required to show that endeavor will cause an immediate impact to the U.S., whereas the endeavor’s future potential to create a significant economic benefit is a favorable factor.
KILF welcomes the new decision on the part of USCIS, and hopes that the standards are adjudicated favorably for foreign nationals and entrepreneurs seeking to bring their skills and goals to the U.S. KILF will closely monitor cases adjudicated under the Matter of Dhanasar standard and advise our clients accordingly.
If you or your company have questions about EB-2 National Interest Waivers or the Matter of Dhanasar standard, contact our law firm to arrange an attorney consultation.