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 such as professionals in international relations, socio-economic professions, economic development and others, who use this application to obtain Permanent residence in the US. With a history of successfully processing National Interest Waiver applications on behalf of our clients, we will work with you to organize, structure and present your case to USCIS in the strongest possible manner.
In order to explain how the new decision has changed the landscape, it is first important to understand what the previous standard was.
Formerly, the AAO laid out a three-part test in the Matter of the New York State Department of Transportation (NYSDOT):
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 look at this framework again, the AAO stated that they felt there has been confusion about how to demonstrate the above criteria. In addition, the AAO felt that this confusion has caused the USCIS to be too narrow in the cases it approved. More specifically, the AAO highlighted two main issues. First, in defining “national” scope, the AAO made it clear that this was NOT a geographic issue. Instead, it is an issue of national importance. Second, too much emphasis has been placed on requiring demonstration of harm to the national interest if the application is not approved and showing influence on the field. Because of this, the AAO decided to reformulate the above test.
New Test in Matter of Dhanasar Under the new framework, and after eligibility for Employment Based Second Preference (EB-2) classification has been established, USCIS may grant a NIW if the petitioner demonstrates the following:
The foreign national’s proposed endeavor has both substantial merit and national importance.
The foreign national is well positioned to advance the proposed endeavor.
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 NIW as a matter of discretion.
Concerning the initial prong, it is evident that many more people should be able to meet these standards. First, in terms of substantial merit, the AAO is removing any required proof about economic benefit and is willing to accept more intangible benefits. While we have used this in many cases, it is good to see it immortalized into an actual standard. Second, the AAO is specifically allowing local impacts that affect national priorities to be used in this regard. In other words, with such a big emphasis on the economy and especially on creating jobs, one can use the potential jobs created for a particular endeavor in one state to justify the national importance of the project. This is a major broadening of the criteria, which would allow scientists and postdocs who are pursuing alternative or non-traditional careers to provide a stronger case for this visa category.
The second prong, which indicates that in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor, seems that just saying you want to continue working in your field is not enough. While you may not need a job offer, you do need a plan to continue your work in your field (be it collaborations you are planning or something similar). Past successes can be used to ensure that you will be able to continue to succeed in your area of expertise. In this way, it is also very similar to what was already required under the old standard. It seems that the AAO is trying to open up that standard by saying that you do not have to show substantial success in the past, just a record of success, which can be easier to show. It allows applicant's to provide evidence of their overall credentials and attributes, which may have carried less weight under the old test. Under Dhanasar, a well thought out and structured application can now be considered to be significantly stronger than under the old test. At Frank & Delaney Immigration Law, LLC we have significant experience in organizing, structuring and presenting your case in the strongest possible manner, while taking this into account.
Finally, the third prong would also seem to be broader. Again, this new standard helps broaden the scope of the NIW and helps many people who may not have qualified previously to have a stronger argument for qualifying. Overall, the AAO seems to have tried to open the NIW to people who it felt should qualify, but whom USCIS found did not qualify under the old standard.
We are seeing that this new standard helping scientists whose fields do not garner a large number of citations or who have moved to non-traditional jobs as well as scientific or biotech entrepreneurs. Furthermore, the possibilities for those in such fields as international relations, socio-economic policy and development, as well as related professions that can be seen to carry US interests now carry a greater change of success.
We can review your credentials and discuss how this new test is being implemented by USCIS with you on an individual basis. We can then evaluate your case and provide you with comprehensive feedback as to how you would be best placed to successfully navigate this visa category. Please click the contact us button below.