U.S. DEPARTMENT OF HOMELAND SECURITY (DHS)

U.S. CITIZENSHIP & IMMIGRATION SERVICES (USCIS)

OFFICE OF THE DIRECTOR

WASHINGTON, DC

 I. INTRODUCTION

The employment-based, second preference immigrant visa category (EB-2 visa) may be awarded in the absence of a job offer and consequently a labor certification if it is judged that doing so would be in the national interest. When seeking the National Interest Waiver (NIW), the alien beneficiary may self-petition since no job offer is required, but if there is a prospective employer, then that employer may file the petition instead.

II. STATUTE

8 USC §1153. Allocation of immigrant visas

(b) Preference allocation for employment-based immigrants

Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows:

(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

(A) In general

Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) Waiver of job offer

(i) National interest waiver

Subject to clause (ii), the Attorney General [Secretary of Homeland Security] may, when the Attorney General Attorney General [Secretary of Homeland Security] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.

Wow! The statute is quite vague.  Congress must have been counting on the agency to elaborate on the NIW requirements in the regulations. Unfortunately, that didn’t happen.

III. REGULATION

8 CFR § 204.5 Petitions for employment-based immigrants.

(k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.

(1) Any United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(2) of the Act as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien's behalf, may be the petitioner.

(2) Definitions. As used in this section:

Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

(3) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.

(i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:

(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or

(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

(4) Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program -

(i) General. Every petition under this classification must be accompanied by an individual labor certification from the Department of Labor, by an application for Schedule A designation (if applicable), or by documentation to establish that the alien qualifies for one of the shortage occupations in the Department of Labor's Labor Market Information Pilot Program. To apply for Schedule A designation or to establish that the alien's occupation is within the Labor Market Information Program, a fully executed uncertified Form ETA-750 in duplicate must accompany the petition. The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability.

(ii) Exemption from job offer. The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest. To apply for the exemption, the petitioner must submit Form ETA-750B, Statement of Qualifications of Alien,[1] in duplicate, as well as evidence to support the claim that such exemption would be in the national interest.

Well, since neither the statute nor the regulation provides any clue about what it takes to get the NIW, we have to look for precedent decisions. Again, there was disappointment for nearly a decade from passage of the 1990 Immigration Act (IMMACT) until the now-vacated precedent set in 1998. Finally, in 2016, a new precedent was issued to supposedly make the guidance more user-friendly. 

IV. ADMINISTRATIVE PRECEDENTS

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) overruled and replaced the previous precedent, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT) in its entirety.  I will not list or discuss the prior reasoning because it would merely serve to confuse the reader.

Dhanasar held:

      USCIS may grant a national interest waiver if the petitioner demonstrates:

(1) that the foreign national’s proposed endeavor has both substantial merit and national importance;

(2) that he or she is well positioned to advance the proposed endeavor; and

(3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), vacated.  [Slightly reformatted from original.]

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The newer and current explanation of the application of Dhanasar is used and reused by AAO in its nonprecedential decisions, here is the verbiage most recent such decision posted as of this writing.

“The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to the individual's education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.³” …….

__________________

³ See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs.

In Re: 21035236 (AAO AUG. 10, 2022) at pp. 2-3. 

V. NINTH CIRCUIT CASE

The summary provided by the court preceding the opinion for the case of Poursina v. USCIS, No. 17-16579 (9^th Cir. 2019) WL 4051593 (Aug. 28, 2019)[2], begins on page 2 with:

Affirming the district court’s dismissal for lack of subject-matter jurisdiction of Mohammad Poursina’s suit challenging the denial of his petition for a national-interest waiver related to his application for a work visa, the panel held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national interest waiver.

The statute grants the government the discretion to waiver or not to waive the requirements of a job offer and labor certification. That discretionary decision is not reviewable in the court except on questions of law and constitutionality.

VI. DHANASAR CRITERIA

The “what”, the “who” and the “how” of the Dhanasar analysis were meant to ease the endless confusion that was the NYSDOT approach to the NIW. I am not confident that it performs as advertised. Under Dhanasar, the framework begins with a focus on the proposed endeavor (that’s the "what") then the focus of the inquiry shifts to the alien beneficiary (that’s the "who"), and finally asks one to consider the big picture (that’s the "how"). The “how” is the most difficult part because it is the most subjective aspect. It is exceedingly difficult to craft a narrative that demonstrates how this particular person, engaged in this particular activity, will benefit prospectively the national interest of the United States. This analysis can under any of numerous contexts, listed above.

Since the statute under which the visa is defined bestows the authority to grant or deny a NIW has been found to be a determination within the discretion of the Secretary and delegated to USCIS, most decisions rely on the jurisdictional bar against judicial review of discretionary decisions. See 8 USC §1252 (a)(2)(B)(ii). In Brasil v. Secretary, Department of Homeland Security, No. 21-11984 (11th Cir. 2022) of May 18, 2022, the 11^th Circuit goes into very little detail about Matter of Dhanasar even though it was relied upon by Brasil to challenge the applicability of the jurisdictional bar. Seeing through the rouse, the Court construed the case as a challenge to the discretionary determination.

VII. CONCLUSION

In the absence of any judicial review on the application of the Dhanasar criteria for determining eligibility for a NIW, the best we have available is the USCIS Policy Manual. PM-Vol. 6-Part F.-Chapter 5-Paragraph D.[3] It is devoted to expanding and explaining the factors identified in Dhanasar.  Specifically, those factors are:

First Prong: The Proposed Endeavor has both Substantial Merit and National Importance is significantly more than just a job even an important job. I think trying answer the question “What is so special about it anyway?” is a worthwhile pursuit.

Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor means that the beneficiary or self-petitioner sure looks capable of achieving something special in that endeavor. A list of pros and cons that is heavily weighted in the pro column makes it easier to make the case and convince the adjudicator to reach a favorable decision. Specific plans are the best bet to explain

Third Prong: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements, requires that one is left with the impression that, if this person is successful in this endeavor, then it’s going to be a big deal. This final piece of this puzzle can be the trickiest. The challenge is to articulate the benefits to be expected upon successful implementation of the great plans of this highly capable person. This had better be impressive to everyone who sees it.

This part of the Policy Manual is useful and well-written. I am not going to cut and paste it here. Instead, I urge you to go read it and bookmark it for ready access. Even with these resources readily available, it is also worthwhile reading AAO’s nonprecedential decisions as it is likely the best we can ever expect on this subject matter. You can read about security consultants, entrepreneurs, dentists, members of various professions holding an advanced degree, people of exceptional ability, an engineer, a pediatric dentist, a business management consultant, a registered nurse, a research consultant, a bioethicist, and many more analyzed under Dhanasar. Enjoy!

DATED: August 22, 2022

[1] This form has been replaced by ETA Form 9089, Application for Permanent Employment Certification, found at:  https://www.foreignlaborcert.doleta.gov/pdf/9089form.pdf

[2] Poursina was issued as a published decision and therefore precedential, so there is a better citation out there somewhere but I could not find it.

[3] See: https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5