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  • Article: AAO Vacates NYSDOT Advancing a New Test to Evaluate National Interest Waver Petitions By Cliff Rosenthal

    AAO Vacates NYSDOT Advancing a New Test to Evaluate National Interest Waver Petitions

    by


    We now have a new test for evaluating national interest waiver (NIW) petitions!  In the precedent decision of Matter of Dhanasar, 26I&N Dec. 884 (AAO 2016), USCIS’s Administrative Appeals Office (AAO) vacated the controversial decision in Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) [“NYSDOT”].  Referring to components of the NYSDOT test as generating “confusion” and “susceptible to unnecessary subjective evaluation,” the AAO considered the new test to provide “clarity” and “flexibility to circumstances” that will “better advance the purpose of this broad discretionary waiver to benefit the United States.”  In particular, the AAO focused on easing the limitations of the NYSDOT test pertaining to entrepreneurs and self-employed petitioners.

    In fact, the NYSDOT and Dhanasar tests are somewhat similar in form.  To determine whether a petition served the US national interest, NYSDOT required satisfaction of the following three criteria:

    1. Area of endeavor must be of “substantial intrinsic merit;”
    2. The area of endeavor must be “national in scope;” and
    3. The national interest would be adversely affected if a labor certification were required.

    While the AAO found the word “intrinsic” made the first prong unnecessarily subjective and the term “national in scope” focused too narrowly on geographic considerations, it was really the third prong that was the impetus for vacating the NYSDOT test.  This was based on the multiple explanations used to adjudicate this prong that caused confusion and appeared to require evidence intrinsically contradictory to the very purpose of the NIW (particularly explanations that seemed to exclude self-employed petitioners).

    Under Dhanasar, the new test is as follows:

    1. The proposed endeavor has both substantial merit and national importance;
    2. The foreign national is well positioned to advance the proposed endeavor; and
    3. On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.

    The first prong is essentially comprises the first two prongs of the NYSDOT test.  The word “intrinsic” is removed, while “national in scope” has been changed to “national importance.”  The AAO confirmed that the endeavor may be exhibited in a wide range of areas, including business, entrepreneurship, science, technology, culture, health or education.  Immediate and quantifiable economic benefit is a favorable factor, but it is not essential.  Moving from “national in scope” to “national importance” allows adjudicators to focus on the substantial impact of the endeavor rather than its geographic location.  For instance, an entrepreneur who creates jobs, especially in a depressed area, may contribute to a nationally important endeavor, although technically it may not be national in scope.

    The second prong of Dhanasar focuses on the foreign national.  To evaluate whether the foreign national is well positioned to advance the proposed endeavor, USCIS should evaluate all factors, including the individual’s education, skills, knowledge, record of success, model/plan for future activities, progress towards achieving the endeavor, and the potential interests of stakeholders (e.g. customers, users, investors, etc.).  While in NYSDOT, the practice was to focus on the record of success solely; in Dhanasar, it is intended to be just one factor.  It is telling that the AAO specifically articulated a shift from this premise to include “talented individuals for whom past achievements are not necessarily the best or only predictor of future success.”

    The third prong requires adjudicators to balance the national interest in requiring job offers and labor certifications to protect the U.S. job market and the realization that certain cases justify that these labor considerations are set aside precisely to further the national interest.  This analysis should include the nature of the foreign national’s qualifications or proposed endeavor; whether it is impractical for the foreign national to secure a job offer or to obtain a labor certification; whether the U.S. would benefit from the foreign national’s contributions (even if there are qualified U.S. workers); and whether the national interest is sufficiently urgent to warrant forgoing the labor certification process.

    While the Dhanasar test appears as subjective as the NYSDOT test, it does lend itself to a wider range of endeavors, especially for entrepreneurs and traditionally self-employed petitioners.  As always, the success of the new test will depend on its implementation by USCIS adjudicators.  However, vacating NYSDOT and substituting it with a much broader test appears a good first step.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.


    About The Author

    Rosenthal Cliff Rosenthal is a partner at Wolfsdorf Rosenthal LLP. He specializes in the business, entertainment and family immigration law field. He is a former member of the American Immigration Lawyer Association (AILA) Board of Publications and Healthcare Committee. He is also a past Chair of AILA's Religious Worker Committee. He is listed in The International Who's Who of Corporate Immigration Lawyers. Cliff Rosenthal can be contacted at crosenthal@wolfsdorf.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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