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New CIS Appeals Decision Broadens EB-2 National Interest Waiver Standard

12 Jan

The U.S. Citizenship and Immigration Services’ (CIS) Administrative Appeals Office (AAO) recently adopted a new framework for adjudicating National Interest Waivers. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In doing so, the AAO indicated that the new framework would better accommodate entrepreneurs and would be a more flexible test that would apply to a wider variety of individuals.

Background of National Interest Waiver Classification

The U.S. lawful permanent residency process under the Employment Based Second preference category (EB-2) for individuals of “exceptional ability” and professionals with advanced degrees normally requires a PERM labor certification process. This PERM process requires a test of the labor market through recruitment activities including Sunday newspaper advertisements and advertisements in other media outlets. However, U.S. Citizenship & Immigration Services (CIS) may waive the job offer and labor certification requirement if a waiver is deemed to be in the “national interest”. The regulations do not define what is considered to be in the national interest, and previous administrative appeals decisions articulated standards that were difficult to apply and resulted in unnecessarily narrowing the pool of potentially qualified waiver applicants.

New National Interest Waiver Standard

In Matter of Dhanasar, which was decided on December 27, 2016, the AAO vacated its decision in the Matter of New York State Department of Transportation (NYSDOT), its most recent precedent decision related to National Interest Waivers. The AAO indicated that the standard articulated in NYSDOT was unnecessarily restrictive as well as confusing in its application. In place of the NYSDOT standard, the AAO adopted a new, three-part framework for evaluating eligibility for a National Interest Waiver.

Under the new standard, the CIS will analyze whether the following three prongs have been met:

  1. The foreign national’s proposed endeavor has both “substantial merit” and “national importance”. In evaluating the “substantial merit” of an activity or endeavor, actual or potential, significant economic impact is not required. Activity related to research, “pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.” “National importance” is evaluated by considering the potential prospective impact of the individual’s proposed work. Activity that has national or global implications in a particular field of endeavor would qualify, but the benefit need not be national in scope.
  2. The foreign national is well positioned to advance the proposed endeavor. Under this prong of the Dhanasar test, the CIS will consider such factors as the individual’s level of education, skill, past progress and achievements, and the interest of potential customers, investors, or other relevant parties. A forecast of future success is not required, but “petitioners must establish, by a preponderance of the evidence, that they are 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. The CIS may consider a wide range of factors, including the infeasibility of securing a job offer or obtaining labor certification and the urgency of the national interest in the individual’s activity. The CIS may also consider “whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions.”

This new test is quite different from the previous standard, and according to the AAO, “This more flexible test, which can be met in a range of ways . . . is meant to apply to a greater variety of individuals” and “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”

What This Decision Means to Employers

Because a foreign national may file a NIW petition without the sponsorship of an employer, this decision should make it easier for entrepreneurs and those that are self-employed to apply under the EB-2 classification. This decision may also potentially ease situations in which an employer is unable, possibly due to current budgetary constraints or temporary hiring freezes, to proceed with the PERM labor certification process on an employee’s behalf. Additionally, certain PERM considerations, such as difficulty in securing prevailing wage determinations within the company’s existing pay scale, a foreign language requirement, or other special requirements that might make labor certification more difficult are not factors in the NIW process. This new framework should provide a more useful alternative that allows the employer to support the process but gives the individual employee the ability to drive the process forward in a manner that the PERM regulations do not allow, such as through the employee’s payment of fees and expenses associated with a NIW case, which is not allowed under the PERM labor certification process.

While the AAO in Dhanasar articulated a new framework for evaluation of National Interest Waiver cases, we can expect that many of the same types of cases that might have been successful before the decision in Dhanasar will continue to be successful now. Additionally, it is possible that CIS adjudicators may take time to fully appreciate and apply the new, more liberal standard resulting in approval of NIW petitions that may have been denied under the previous standard. Even after the new standard is fully implemented, it will remain difficult to predict whether a petition requesting a NIW will be approved. As under previous NIW adjudications, the outcome depends largely on the judgment and discretion of the immigration officer reviewing the case.

Contact your Foster immigration attorney for more information on these changes or to initiate a new case. As always, Foster LLP will continue to monitor the impact of changes in immigration standards and will provide additional information in future Immigration Updates© and on our firm’s website at