The Dhanasar decision replaces the longstanding Matter of New York State Dep’t of Transp. (NYSDOT) decision that had been in place for nearly 20 years. NYSDOT originally established the three-prong test for deciding National Interest Waiver (NIW) cases, the format of which is still in use today. On December 27, 2016, the Administrative Appeals Office (AAO) issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) (Dhanasar or New Framework) which vacated NYSOT on which USCIS routinely relied when adjudicating NIW petitions.
Before Dhanasar, the three-prong test established in NYSDOT, which the Dhanasar decision revised, was as follows:
- The beneficiary must seek to work in an area of substantial intrinsic merit;
- The beneficiary’s work must have a benefit which will be national in scope;
- The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The national interest would be adversely affected if a labor certification were required for the beneficiary.
The NYSDOT standard resulted in inconsistent adjudications, confusion and general frustration. Especially the third prong, which has been proved to be the most difficult to establish and was the sole subject of many USCIS Requests for Evidence. Under this prong, although a NIW is granted based on prospective national benefit, the foreign national’s past record had to justify projections of future benefit to the national interest. In other words, a NIW petitioner had to demonstrate that the prospective national interest was not entirely speculative, but based on demonstrable prior achievements.
Acknowledging the existing confusion, in Dhanasar, the AAO articulates a new NIW standard that the AAO believes provides greater clarity, applies more flexibly individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States. Under the New Framework, after eligibility for EB-2 classification (advanced degree or exceptional ability) has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
- The foreign national’s proposed endeavor has both substantial merit and national importance
- Under the New Framework, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake.
- Under the New Framework, the endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, or education. Evidence that the endeavor has the potential to create a significant merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
- In determining whether the proposed endeavor has national importance, AAO considered its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But AAO did not evaluate prospective impact solely in geographic terms. Instead, AAO looks for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to access “national importance rather than “national in scope,” as used in NYSDOT, AAO seek to avoid overemphasis on the geographic breadth of the endeavor. 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.
- The foreign national is well positioned to advance the proposed endeavor
- To determine whether the petitioner is well positioned to advance the proposed endeavor, USCIS considered 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.
- 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 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. USCIS 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.