January 8, 2017

On December 27, 2016, the Administrative Appeals Office issued a valuable precedent decision in Matter of Dhanasar, 26 I&N Dec 884, Int. Dec. 3882, altering and broadening the legal standard for national interest waiver immigrant visa petitions. The new standard allows USCIS to waive both job offer and labor certification requirements where a petitioner with demonstrated eligibility for EB-2 classification as either an advanced degree professional or an alien of exceptional ability, shows by a preponderance of the evidence 1) that the proposed endeavor has 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 both the job offer and labor certification.
This decision vacates the burdensome precedent Matter of NY State Department of Transportation (“Matter of NYSDOT”), in place since August 1998, which established an onerous three-pronged legal standard. The NYSDOT standard required 1) that the proposed endeavor be national in scope (often interpreted in a pedantic, literal-mindedly geographic fashion); 2) that the foreign national’s work must have “substantial intrinsic merit”; and 3) that the national interest would be adversely affected by requiring labor certification for the foreign national, which essentially required the petitioner to prove a negative.

The Immigration & Nationality Act, as amended by IMMACT’90, provides at INA 203(b)(2) that the requirement of labor certification (a test of the labor market for qualified US workers, by means of a complex & regimented recruitment program overseen by the Department of Labor) may be waived for members of the professions holding advanced degrees, or for individuals of exceptional ability, who “will substantially benefit prospectively the national economy, cultural or educational interest, or welfare of the United States,” i.e. where the individual’s work is deemed to be “in the national interest.” Amazingly, neither Congress nor the immigration service (then INA, now USCIS), has ever sought to define the “national interest.”

The framework provided by the AAO in Matter of Dhanasar offers further interpretive guidance for each prong of its new test.

Under the first prong, substantial merit may be shown in business, entrepreneurialism, science, technology, health, culture or education, and the AAO notes that scientific or research benefits may not translate into economic impact. To gauge the national importance of the proposed endeavor, look to its potential prospective impact, explicitly not limited to geographic impact.
Under the second prong, to determine whether a beneficiary is well-positioned to advance the proposed endeavor, the non-exclusive factors to consider may include the foreign national’s education, skills, knowledge, record of success in similar areas, plan for the future, progress made toward achieving the proposed endeavor, and demonstrated interest of related parties, such as users, customers, or investors.

Under the third prong, when showing that it would benefit the United States to waive the job offer and labor certification requirements, relevant factors may include whether it would be impractical in light of the foreign national’s background; whether the proposed endeavor would still benefit the United States even if other qualified US workers are available; and whether the US interest in the foreign national’s contributions is sufficiently urgent to forgo labor certification. The AAO explicitly said this test was intended to be more inclusive and flexible than the NYSDOT standard.

“We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against US workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. 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, at 891)

Hopefully, application of this new standard for national interest waivers will eliminate the cumbersome apples-to-oranges comparison arguments necessitated by NYSDOT.