Skip to main content

3 Ways National Interest Waivers have Changed Under Dhanasar!

The USCIS, through its Administrative Appeals Office (AAO) has issued a precedent decision, overturning two decades of precedent on how one qualifies for National Interest Waivers and creating a less subjective three part test for those seeking permanent residence in the United States under this category.

National Interest Waivers (NIW) were created by Congress in the Immigration Act of 1990 (IMMACT 90) to allow individuals who fell under the second preference category of employment based immigration to skip the lengthy and always problematic "labor certification" process, if they could show that their immigration to America would be "in the National Interest."   Congress did very little explaining about what this new term meant, and Legacy INS struggled for a long time to come up with their own definition and required proof for this category.  Eventually, in the seminal case of Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), the AAO established a series of relatively murky criteria to meet this category's "national interest waiver" exception.  That decision left a lot of wiggle room for inconsistency of adjudication, and as a result, Legacy INS and now USCIS have issued a series of wildly divergent denials and grants to similarly situated individuals.

The AAO's new decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) has now given us a three relatively clear criterion to meet the standard of National Interest.

1.  "The foreign national’s proposed endeavor has both substantial merit and national importance."

2,  "The foreign national is well positioned to advance the proposed endeavor."

3.  "On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification."

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

The big question is, what do each of these criterion mean?

The first criteria can be met by showing that the person's work has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. The good news is that USCIS is moving away from geography as a definition of "national."  Even better, the AAO gives an example of how an entrepreneur can qualify for the NIW:  "an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance," as one which can satisfy this criteria.

The second criteria shifts the focus to the foreign national.  Does the applicant have the "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."  The applicant must show that they are in a good position to succeed in their plan.  This new criteria is an excellent change from the current standard.

The third and final criteria is the most important and far reaching change.  The petitioner must demonstrate that, "on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification."  The USCIS will evaluate the application using such factors as "whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."   For an entrepreneur, it would be impractical to do a labor certification, as they own the company. And one can even argue that "even assuming that other qualified U.S. workers are available, the United States 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 process."

This decision is far reaching and it is now far more flexible for applicants going forward to qualify for the EB-2, National Interest Waivers than it has been in the past.

If you want more information about how this decision affects your case, call Charles Kuck and the attorneys at Kuck Immigration Partners for more information and analysis of your immigration options.

Comments

  1. when this change is effective? Is it effective immediately?

    ReplyDelete

Post a Comment

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America. The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds. Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups: Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans

Seven Reasons Why the Georgia Legislature Should Repeal HB-87

Recently the Alabama Attorney General called on the Alabama State Legislature to repeal parts of Alabama's horrid anti-immigration law ( HB 56), because of the "unintended" consequences of the bill (frankly, what happened was not unintended). Because of the similarity between the two laws, Georgia's Speaker of the House, David Ralston was asked whether Georgia Legislature would repeal part or all of HB 87, Georgia own anti-immigration law. HB 87 has caused almost a half a billion dollars in damage to the Georgia economy (along with untold suffering in Georgia's immigrant communities) without any noted or reported positive effect. Speaker Ralston plainly stated that the Georgia Legislature would NOT do anything to repeal HB 87 . While it understandable why a politician would not admit that a pet bill he shepherded and pushed through the state legislature was simply bad law, it is also clear that Speaker Ralston is facing a challenge on his RIGHT in th

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence. The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens