On December 27, 2010, the U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) published a precedent decision that significantly alters the criteria for the EB-2 National Interest Waiver (NIW) immigrant visa category. The decision is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). As a result of this decision, foreign nationals seeking permanent residence by bypassing the job offer requirement and labor certification process through a NIW must establish the following:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On the balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.
Overall, the new NIW framework relaxes the eligibility criteria. Under the prior framework, announced in 1998 in Matter of New York State Department of Transportation (NYSDOT), a foreign national had to demonstrate the following:
- The foreign national sought employment in an area of substantial intrinsic merit.
- The proposed benefit would be national in scope.
- The national interest would be adversely affected if a labor certification were required for the alien.
Under the new framework, most importantly, the last prong has been significantly altered. Previously, to meet the third prong, a foreign national had to establish that it would “…serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” Now, as the AAO made clear in Matter of Dhanasar, a foreign national does not have to compare himself or herself to any U.S. workers or show any harm to the national interest. In the words of the AAO, the change to the third prong creates a “more flexible test” that is “meant to apply to a greater variety of individuals,” including entrepreneurs and self-employed individuals.