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The AAO issues revised National Interest Waiver framework, vacating Matter of NYSDOT

On December 27, 2016, the Administrative Appeals Office of USCIS issued a new precedent, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), vacating its principal decision on National Interest Waiver adjudications which had prevailed for nearly two decades. The case involved an aerospace engineering researcher and educator seeking a national interest waiver under the EB-2 category for an individual with an advanced degree. The Director of the Texas Service Center denied the petition, concluding that a waiver of the job offer requirement would not be in the national interest.

As the AAO explains, an immigrant visa is available in the EB-2 category to qualified immigrants holding advanced degrees or who have exceptional ability in the sciences, art, or business, but these individuals are required to have a job offer in the U.S. Moreover, the employer making the offer must obtain a certification from the U.S. Department of Labor that there are not sufficient able, willing, and qualified workers to fulfill the job. Both of these requirements can be waived if it is shown that the alien’s services are in the national interest. However, the term “national interest” is undefined.

In 1998, INS issued a framework for evaluating national interest waiver petitions in Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The NYSDOT inquiry has three requirements 1) that the area of employment is one of “substantial intrinsic merit”; 2) the proposed benefit from the individual’s endeavors will be “national in scope”; and 3) the national interest would be adversely affect if a labor certification were required for the foreign national.

The new test is as follows:

USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: 8 (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Notable changes include the removal of the word “intrinsic” from prong 1, which the AAO asserted had caused confusion. Moreover, the new language of prong 1 now focuses more on the particular mission of the alien than on his broader field of work.

New prong 2 focuses substantially less on the geographic scope of the benefit of the alien’s work. The AAO now states “[W]e do not evaluate prospective impact solely in geographic terms” and “[e]ven ventures and undertaking that have as their focus one geographic area of the United States may properly be considered to have national importance.” Critically, the AAO notes: “An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

New prong 2 brings the framework closer to what we see as actual practice. In other words, it is not enough that a foreign national is involved in a great endeavor; he should be leading it or at least have skills and experience necessary to the endeavor that would be hard to replace.

Dhanasar takes the most issue with the third prong of NYSDOT and notes new prong 3 does not require a showing of harm to the national interest if the foreign national is not admitted and does not require a comparison against U.S. workers in the petitioner’s field. Rather,

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; whether, even assuming 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. We emphasize that, 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.

These changes are clearly intended to facilitate national interest waiver petitions for self-employed individuals and entrepreneurs.

Analysis: It remains to be seen whether this decision has a broad impact on national interest waiver adjudications as it seems mostly to align the criteria with actual adjudication practices, at least as they apply to non-self-employed cases. It would be nice to see a reduced emphasis on the geographical reach of the foreign national's work, but it is hard to imagine what would replace it, particularly as the new criteria simply replaces "national in scope" with "national importance."

It is rather odd, frankly, that a decision which seems geared to boost positive adjudications for entrepreneurs and self-employed individuals was issued in the context of a university researcher. We’re left to guess how such criteria would actually be applied to, say, a small business owner creating a few U.S. jobs in an economically depressed area. If this is "national importance" then what other local benefits are of national importance? Indeed, towards the end the decision seems to revert to the old criteria by determining that while Mr. Dhanasar's research is in the U.S. interest, his teaching is not because he had not demonstrated his teaching was of "national importance." How is one to apply this decision to an entrepreneurial situation? It is entirely unclear why creating jobs in an economically depressed area is of national importance but teaching aerospace engineering at a local university is not.

The future impact of this decision may be simply an awkward stamp of approval for using the NIW category as a sort of poor man’s EB-5, but it provides no real reassurance to someone applying for permanent residence with that intention.

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