New Legal Framework for Adjudicating NIW Petitions
Out with the Old. The EB-2 immigrant visa category is for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business. This visa category generally requires a job offer and a labor certification by the Department of Labor. That means a self-petitioning entrepreneur cannot file an EB-2 visa petition unless he or she qualifies for a National Interest Waiver (NIW).
Under section 203(b)(2)(B)(i) of the Immigration Nationality Act, “[t]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements . . . that an alien’s services in the science, arts, professions, or business be sought by an employer in the United States.” Id. The NIW allows an entrepreneur to self-petition by filing the visa petition without the requirement of a job offer (and thus, without the requirement of the labor certification).
In general, there are some key requirements that an NIW seeker must fulfill to demonstrate that he or she is deserving of this waiver. First, the petitioner must demonstrate that he or she is a member of the professions holding an advanced degree or is an individual of exceptional ability. Second, the petitioner must establish that it would be in the national interest to waive the job offer requirement.
In evaluating whether one can establish that it would be in the “national interest” to waive the job offer requirement, USCIS has traditionally relied on an Administrative Appeals Office (AAO) precedent decision for guidance, New York State Dep’t of Transp. (“NYSDOT&rdquo, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). Under this framework, the petitioner must meet three prongs. He or she must first show that the area of employment is of “substantial intrinsic merit.” Next, the petitioner must establish hat any proposed benefit from his or her endeavors will be “national in scope.” Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required. However, this has now changed.
In with the New. On December 27, 2016, the AAO issued a precedent decision by which it revised the analytical framework for assessing eligibility for the NIW under INA 203(b)(2)(B)(i). Matter of Dhanasar, 26 I&N 884 (AAO 2016). In Dhanasar, the AAO determined that it is “now time for a reassessment” of the prior legal framework under NYSDOT. In particular, Dhanasar finds issue with the second and—especially—the third prongs discussed above. Thus, Dhanasar vacates NYSDT and adopts a new framework for adjudicating NIW petitions.
Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence the following new three prongs:
(1) The foreign national’s proposed endeavor has both substantial merit and national importance.
This prong focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas. A number of examples are discussed in Dhanasar. In determining whether the proposed endeavor has national importance, the adjudicator must consider its potential prospective impact through broad implications.
(2) The foreign national is well positioned to advance the proposed endeavor.
This prong focuses on the foreign national. Here, the adjudicator considers factors such as the petitioner’s education, skills, knowledge, and record of success in relate or similar efforts, a model or plan for future activities, any progress toward achieving the proposed endeavor, and the interest of potential involved entities or individuals.
(3) On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
This prong relates to Congress’s recognition that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. This consideration, as with many of the above considerations, is on a case-by-case basis. Here, the adjudicator may evaluate factors such as whether it would be impractical to abide by the job requirement and labor certification requirements, given the foreign national’s qualifications or proposed endeavor. Dhanasar discusses other factors that may also be considered in this new third prong. This decision emphasizes that there is no requirement to show harm to the national interest or a comparison against US workers in the petitioner’s field.
If these three elements are satisfied, USCIS may approve the NIW as a matter of discretion. Dhanasar at 889.
If you are considering a NIW, our attorneys are available and ready to assist you through this process.
For more information about National Interest Waivers, please contact Christy Turovskiy, Esq. at firstname.lastname@example.org
Christina M. Turovskiy (Christy) is an associate attorney at Hammond Law Group. She is a graduate of Case Western Reserve University. She earned her Juris Doctorate degree, Cum Laude, from Cleveland-Marshall College of Law. She is admitted to the practice of law in the State of Ohio. She can be reached at email@example.com.