On Jan 11 2017 by Lisa T. Felix
The New National Interest Waiver: A More Flexible Test For Highly Skilled Immigrants
On December 27th, 2016, the U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) announced a precedent decision, Matter of Dhanasar, which broadens the ability for certain highly skilled immigrants to obtain permanent residence through a National Interest Waiver.
(https://www.justice.gov/eoir/page/file/920996/download). The Dhanasar decision introduced a new framework used to determine National Interest Waivers (NIW) eligibility, which provides more well-defined language, and a more flexible interpretation of the types of endeavors and accomplishments which serve the “national interest” of the United States. This new framework is expected to create a clearer path to permanent residency for entrepreneurs, researchers, and other highly skilled individuals who may contribute greatly to the United States, but who have seen difficulty in meeting NIW criteria under the former framework.
National Interest Waivers (NIWs) allow advanced degree professionals and individuals with demonstrated exceptional ability in the sciences, arts, or business to bypass the extensive labor certification process for permanent residence, if they can demonstrate that their endeavors and contributions are “in the national interest” of the United States. Especially significant is that an NIW petition may be either employer-sponsored OR self-sponsored, making it an attractive option for researchers and entrepreneurs who are not affiliated with a qualifying employer-sponsor. For nearly two decades, eligibility for permanent residence based on a NIW has relied upon a three-prong framework established in the 1998 ruling in Matter of New York State Dep’t of Transp. (NYSDOT). In their new precedent ruling in Matter of Dhanasar, the AAO vacates the NYSDOT decision, and presents a new structure for establishing national interest. While the effects of Matter of Dhanasar will become clearer as cases are decided under this new test, the revisions and clarifications contained within Dhanasar may offer new opportunities for qualified applicants seeking NIW status who had previously been deterred or disqualified by the murky language and uncertain criteria.
The Dhanasar framework requires successful petitioners to demonstrate that:
- the foreign national’s proposed endeavor in the United States has both substantial merit and national importance;
- the foreign national is well positioned to advance the proposed endeavor; and
- on balance, it would be beneficial to the United States to waive the requirements of the labor certification process, and thus the requirement of a job offer.
Dhanasar’s first prong examines the merit and national importance of the specific endeavor the foreign national proposes to undertake upon immigrating to the United States. The decision implies that these factors are to be interpreted broadly. “The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. … [E]ndeavors related to research, pure science, and the furtherance of human knowledge may qualify…” The requirement of national importance requires the petitioner to demonstrate their endeavor’s contribution to a broader series of national priorities. This includes entrepreneurs whose endeavors represent “significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area.”
The second prong, requiring demonstration that the foreign national is “well positioned to advance the proposed endeavor,” gives the USCIS the flexibility to evaluate highly varied evidence of a prospective immigrant’s resources, skills, and opportunities. Such factors may include 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.” With special regard to entrepreneurs and scientists, the AAO recognizes that “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.” The decision does not require petitioners to “demonstrate that their endeavors are more likely than not to ultimately succeed.”
Dhanasar’s third prong emphasizes the broad discretion of the USCIS to identify and promote benefits to the national interest. Specifically, the USCIS may evaluate factors such as whether, in light of the nature of the foreign national’s qualifications or 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; and whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions.
Removing impractical or murky benchmarks in determining NIW eligibility and instead focusing on the potential benefits of a petitioner’s endeavors reinforces the original goals the NIW process was originally intended to advance: creating a more intuitive path to residency for petitioners who demonstrate that their employment or endeavors represent beneficial contributions to the interests of the United States. The Dhanasar decision, we believe, should significantly broaden the definition of ‘national interest’ while providing clearer direction on how eligibility is evaluated. The new clarity of language has the potential to more explicitly apply to entrepreneurs, researchers, and other classes of beneficial workers who had previously been deterred by the vague and blurred language of the previous framework.
Though the impending Trump administration has made the future of many immigration policies uncertain, the clearly defined priorities of advancing the national interests of the United States within through immigration based on an NIW petition would seem to be in line with the President-Elect’s stated goals to “make America great again” through investment in infrastructure and job creation. Therefore, we are optimistic that the language within Dhanasar, will represent improved opportunities for highly qualified individuals seeking a path to permanent residence in the United States.
Attorneys at Klasko Immigration Law Partners, LLP are happy to consult with anyone who may have questions regarding this or any related immigration matters.