On December 27, 2016, the AAO issued a decision that modifies the standards for granting a National Interest Waiver (NIW) in Matter of Dhanasar. This decision will impact thousands of applicants seeking U.S. permanent residency based solely upon the importance of their work in the United States or their unique accomplishments/qualifications. The decision fundamentally alters the NIW standard by providing more flexibility to individuals such as entrepreneurs who have traditionally been self-employed, and whose employment was not well-suited for this benefit under the prior NIW test.

Background

Most work-based green card applications require a job offer from a sponsoring employer and an approved “labor certification” from the U.S. Department of Labor, confirming that the employer has tested the labor market and is unable to find a qualified, willing, and able U.S. worker to fill the position. A recruitment process is conducted to search for U.S. workers who meet the minimal requirements for the position, which must be normal within the occupation and cannot be tailored to the foreign beneficiary’s specific background. Since this test focuses on the bare minimum required for a role, the labor certification requirement prevents an employer from taking into consideration special qualifications or accomplishments that make a sponsored worker superior to other applicants and often outstanding in his or her field. The labor certification process is intended to protect the interest of qualified U.S. workers who could suffer loss of opportunity due to the permanent hiring of a foreign worker. However, this requirement makes it more difficult to sponsor for permanent residency someone who is exceptional and can contribute the most to an organization or field of work.

National Interest Waivers

Congress established a special NIW category to permit waiver of the job offer and labor certification requirements when it is the “national interest” to do so. Unfortunately, Congress failed to explain what constitutes national interest, leaving it to the legacy Immigration and Naturalization Service (INS) to interpret Congress’s intent. In 1998, the INS issued Matter of New York State Dep’t of Trans. (“NYSDOT”), a decision that established the standards governing NIWs and emphasized the applicant’s prior achievements while requiring demonstration that the national interest would be adversely affected if a labor certification were required.

Over the years, this test has received legitimate criticism. Primarily, the emphasis on establishing harm to the national interest by comparison to the interests of a “fictitious” U.S. worker has drawn criticism. In the abstract, entrepreneurs and other professionals have often struggled to convince immigration adjudicators that requiring a labor certification would “adversely” impact the national interest.

Matter of Dhanasar

Addressing this criticism, Matter of Dhanasar vacated NYSDOT and established a new test for NIWs. Now, applicants must demonstrate the following:

  1. The proposed endeavor must have both substantial merit and national importance;
  2. The foreign national must be well-positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification.

Significantly, the AAO’s decision makes abundantly clear the intent to expand the scope of NIWs to recognize that entrepreneurial ventures are a legitimate basis for such applications. The AAO notes that its prior standard was difficult to apply to entrepreneurs and rectifies this by specifically stating that “prong 1,” demonstrating the endeavor’s merit, may be achieved by showing how it applies to areas including “business, entrepreneurialism, science, technology, culture, health, or education.” The decision also directly addresses the impracticality of requiring an entrepreneur to show why their application shouldn’t require a specific job offer from an employer or a labor certification.

Insights

This decision will impact entrepreneurs and traditional NIW applicants. For one, the standard will make it easier for entrepreneurs who will create jobs in a specific area to demonstrate benefits to the national interest in their ability to stay in the U.S. permanently and contribute to the U.S. economy.

Second, the new standard will impact scientists, researchers, and other professionals who have often relied upon the NIW option, and will remain attainable while also avoiding many of the prior test’s difficulties. Applicants no longer are required to show that the national interest in avoiding a labor certification outweighs the interests of hypothetical qualified and interested U.S. workers. Educational and research institutions, which traditionally sponsor high-performing individuals for permanent residency in the United States and have a specific interest in NIW petitions, should work with immigration counsel to meet the requirements for the new test.

Much remains to be seen about how the new standard will be applied by U.S. Citizenship and Immigration Services (USCIS). Like any other legal principle, how this standard is put to use will determine whether it makes approval of an NIW application easier for previously marginalized applicants. In the meantime, it creates opportunities for a broader range of applicants and will most certainly prompt new, expanded uses of this category of green card application. This decision also fulfills a promise to improve the National Interest Waiver category made by Department of Homeland Security officials after President Obama announced immigration-related executive actions in November 2014.