Q: What’s the effect of Matter of Dhanasar?

A: In 1998, the Administrative Appeals Office (AAO) issued a precedent decision, In Re New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”), which created a three-prong test for petitioners seeking a national interest waiver. The purpose of these prongs is to set minimum requirements for activities that are in the national interest. In nearly two decades, USCIS had been relying on NYSDOT to adjudicate NIW petitions, until December 27, 2016, a new AAO precedent decision Matter of DHANASAR, Petitioner, 26 I&N Dec. 884 (AAO 2016) (“Dhanasar”) was issued, providing a new framework for adjudicating national interest waiver petitions. The old NYSDOT standard resulted in inconsistent adjudications, confusion and general frustration. Acknowledging the existing confusion, in Dhanasar, AAO reassessed the adjudication requirements and articulates a new NIW standard that the AAO believes provides greater clarity, applies more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States. In a nutshell, the new standard requires less of past achievements and more of potential achievements and national scope will not be looked at merely from a geographical perspective.

Q: What must be shown to be successful on an EB-2 national waiver petition?

A: INA Section 203(b)(2)  requires that all aliens seeking to qualify as having exceptional ability show that their presence in the United States would substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States and adds the additional test of “national interest” to those who wish the job offer waiver.

Neither Congress nor legacy INS defined the term “national interest” in either the INA or the regulations in order to leave the application of this test as flexible as possible. However, an alien seeking to meet the national interest standard must show significantly more than “prospective national benefit” required of all aliens seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that exemption from, or waiver of, the job offer requirement will be in the national interest. Each case is to be judged on its own merit.

Q: What are the three prongs under the new analytical framework defined in Dhanasar?

A: 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: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.

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. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s 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 consider 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 do not evaluate prospective impact solely in geographic terms (previously provided by NYSDOT). Instead, AAO look 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 assess “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 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, AAO 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.

AAO recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

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. On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized 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. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications.

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. 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.

This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

Q: If I meet the three prongs of Dhanasar am I automatically granted the waiver?

A: While the Dhanasar decision sets forth these three minimum criteria which must be met in order to establish eligibility for a national interest waiver, the presence of these factors, alone do not necessarily mean that you must grant the waiver. For example, an alien with a criminal background might meet the above criteria, yet still might not merit a discretionary grant of the waiver. You should consider all the facts presented in making your determination.

Moreover, an alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification.

General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the U.S., cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.

In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the alien has few or no demonstrable achievements.

When a petition is denied because eligibility for the national interest waiver has not been established, the immigration officer must give the petitioner the right to appeal that decision.