March 28, 2017 in Blog, Startup Advice

Why the new standard for National Interest Waivers is important for entrepreneurs and employers

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Danielle Claffey
Danielle Claffey

by Danielle Claffey

On Dec. 27, 2016, the Administrative Appeals Office (AAO) issued a precedent-setting 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. Commissioner 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. Dhanasar recently 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:

  1. The foreign national’s proposed endeavor has substantial merit and national importance, ad this can include the areas of business, entrepreneurialism, science, technology, culture, health, and education. Geographic breadth is no longer the determining factor as it was with the previous “national in scope” standard.
  1. The foreign national is well-positioned to advance the endeavor in that USCIS will evaluate their education, skills, knowledge and record of success in related or similar efforts, a model or plan for the future, progress toward achievement, interest of potential customers, users, investors or other individuals where relevance can be substantiated. Notably, evidence of potential for significant economic impact is favorable but not required because merit can be established without immediate quantifiable economic impact.
  1. When balancing the evidence submitted, it would be beneficial to the U.S. to waive the job offer and labor certification requirements, and in considering this, USCIS will evaluate whether the U.S. will benefit from the contributions EVEN if qualified U.S. workers are otherwise available (contrary to the labor certification requirements), and whether the national interest of the foreign national’s contributions is sufficiently urgent to warrant waiving the labor certification. USCIS will also evaluate whether it would be impractical for the foreign national to obtain a job offer or the petitioner to file a labor certification.

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.

Ms. Claffey is a partner at Kuck Immigration Partners, a 2017 ATDC program sponsor.

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