Matter of Dhanasar Provides New Standard for EB-2 National Interest Waiver

On December 27, 2016, the Department of Homeland Security designated as precedential the USCIS Administration Appeals Office’s (AAO) decision in Matter of Dhanasar, thereby vacating the previously used Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (AAO 1998) (NYSDOT), which had been in place for nearly two decades. Matter of Dhanasar provides a new analytical framework that the AAO hopes would apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals.

According to the USCIS, this precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification. Below, we will describe what this means for the evidence that clients need to provide.

The first prong focuses on the specific endeavor that the foreign national proposes to undertake in the context of “substantial merit” and “national importance.” An endeavor’s “substantial merit” can be demonstrated in a range of areas, such as business, entrepreneurialism, science, technology, culture, health, or education. Notably, economic impact is not required to establish substantial merit, which is beneficial to foreign nationals who work in fields of pure science and the furtherance of human knowledge. Furthermore, “national importance” can be demonstrated through prospective impact, such as having national or global implications within a particular field (e.g., medical advances or improved manufacturing processes). Unlike under NYSDOT, there is no need to emphasize whether the foreign national’s endeavor affects all of the states in the U.S.; rather, endeavors focused in one geographic area of the U.S. can still be considered to have national importance.

The second prong focuses on factors that indicate whether the foreign national is “well positioned to advance the proposed endeavor.” Such factors include, but are 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. Please note that the AAO decision does not require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed, as they acknowledge this would be very difficult to prove.

The third prong focuses on showing why “it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.” To determine this, USCIS may evaluate factors such as whether it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, assuming that other qualified U.S. workers are even available, the U.S. 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 n process. Unlike in NYSDOT, there is no more requirement of showing harm to the national interest or a comparison against U.S. workers in the petitioner’s field. This provides more flexibility for petitioners who previously found this prong problematic, such as entrepreneurs and self-employed individuals.

By meeting the criteria of this three-prong test, petitioners may be granted a national interest waiver. It should be noted that approval is still subject to the discretion of the immigration officer reviewing the case, which means decisions may still be subjective. In addition, it is uncertain how the USCIS will train its adjudicators to apply the new framework. As cases are adjudicated under Matter of Dhanasar, we at LPY Law Group will continue to follow the latest updates and advise our clients on the best approach to prepare their NIW petitions.