shutterstock_338458820USCIS has established a new standard for adjudicating national interest waiver petitions by naming the Administration Appeals Office’s (AAO) Dec.27, 2016 decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), a precedent decision. This decision vacates Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), which established the previous analysis framework.

A national interest waiver may be available to immigrants eligible for an employment-based, second preference (EB-2) visa under section 203(b)(2)(B)(i) of the Immigration and Nationality Act (INA). The INA allows the Secretary of Homeland Security to discretionarily waive the requirement of a job offer and of a labor certification, which would otherwise be required to get the visa. To be eligible for the waiver, the foreign national beneficiary must first demonstrate that he or she qualifies as a member of the profession, holding an advanced degree or as an individual of exceptional ability. The beneficiary must then establish that it would be in the national interest to waive the job offer requirement.

Under the previous framework offered by Matter of New York State Dep’t of Transp., known as NYSDOT, the petitioner must show that the area of employment is of substantial intrinsic merit. Then, a petitioner must establish that any proposed benefit from the individual’s endeavors would be national in scope. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required. In the December 2016 decision, the AAO chose to establish a new framework to decrease confusion for petitioners and adjudicators regarding the definitions of the terms within the old analysis, including “national interest.”

Now, under Matter of Dhanasar, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of evidence (i.e., more likely than not):

  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.

In Matter of Dhanasar, the AAO further describes the elements in evaluating national interest waiver petitions. Regarding the first requirement: the proposed endeavor’s merit may be demonstrated in a range of fields, including entrepreneurialism, technology, or health, and could, but need not, create a significant economic impact. Further, in determining whether the endeavor has national importance, its prospective impact would be assessed, and not solely in geographic terms. Regarding the second requirement: factors considered in determining whether the foreign national is well positioned to advance the proposed endeavor include education, skills, and record of success in similar or related efforts. Regarding the third requirement: USCIS should consider factors including whether, even if qualified U.S. workers are available, the United States would still benefit from the foreign national beneficiary’s contribution. There is no longer a requirement that the petitioner present a showing of harm to the national interest if a labor certification were required or a comparison against U.S. workers in the petitioner’s field.

Granting the waiver is still a matter of discretion, and as such, per case law, the petitioner must show that the foreign national otherwise merits a favorable exercise of discretion. However, as discussed in the decision, this more flexible test is meant to apply to a greater variety of individuals. Its clearer requirements are a welcome change.