On December 27, 2016, the Administrative Appeals Office (“AAO”) issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), vacating the 1998 decision is Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). Subsequently, on March 8, 2017, U.S. Citizenship and Immigration Services (“USCIS”) confirmed that they resumed processing of National Interest Waiver (“NIW”) petitions in light of the new decision in Dhanasar. The central issue in both of these decisions is the proper framework for determining whether a foreign national filing an EB-2 Immigrant Petition as a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business is eligible for a discretionary waiver of the job offer and labor certification requirements that would ordinarily be required to file an immigrant petition. There are no statutory guidelines for a NIW, rather, the governing analysis was determined by NYSDOT in 1998, and that has been the controlling framework ever since. The decision in Dhanasar authorizes a new, more simplified, and less narrowly-tailored framework to determine if an individual is eligible for a NIW.
First, a NIW can be pursued as part of an Employment-Based Second Preference Immigrant Petition (“EB-2”). In order for a foreign national to be eligible for an EB-2 Petition, the individual must be a “member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability”. See generally, INA § 204.5. Second, assuming the foreign national meets the initial requirements above, a NIW is then a means by which an employer or foreign national requests that the Labor Certification component be waived.
Until the decision in Dhanasar, the NYSDOT standard for a NIW required that a petitioner show the area of employment is of “substantial intrinsic merit”, that the benefit from the individual’s endeavors will be “national in scope”, and that “the national interest would be adversely affected if a labor certification were required for the foreign national”. See NYSDOT, 22 I&N at 217. Dhanasarrecently held that among other issues with this construct from NYSDOT, it also has “proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs”. See Dhanasar at 888. The old standard was restrictive and made it very difficult to meet the requirements under the NYSDOT framework.
The decision in Dhanasar greatly expands the ability for employers and self-employed foreign nationals to seek NIWs, and the three principal criteria are summarized below:
In summary, this new framework to determine eligibility for a National Interest Waiver will finally serve its purpose by carving a more beneficial and broader path for employers or foreign nationals with advanced degrees or having exceptional ability in a particular field to implement their ideas in a way that truly can be of national importance.