Until the decision in Dhanasar, the NYSDOT standard for a NIW required that a petitioner show the area of employment is of “substantial intrinsic merit”, that the benefit from the individual’s endeavors will be “national in scope”, and that “the national interest would be adversely affected if a labor certification were required for the foreign national”. See NYSDOT, 22 I&N at 217. Dhanasar recently held that among other issues with this construct from NYSDOT, it also has “proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs”. See Dhanasar at 888. The old standard was restrictive and made it very difficult to meet the requirements under the NYSDOT framework.
The decision in Dhanasar greatly expands the ability for employers and self-employed foreign nationals to seek NIWs, and the three principal criteria are summarized below: