National Interest Waiver (NIW): NYSDOT overturned, new standard introduced
On December 28th, 2016 the Administrative Appeals Office issued a decision in Matter of DHANASAR that has changed the landscape for National Interest Waiver cases. This is of major importance as the National Interest Waiver is one of only two self-sponsored applications and many scientists, researchers, entrepreneurs, and others use this application to obtain Permanent residence in the US. In order to explain how this decision has changed the landscape, it is first important to understand what the previous standard was
In Re: New York State Department of Transportation
Under the Immigration and Naturalization Act, there are five Employment Based Immigrant Visa Levels. Each level can have several categories. The National Interest Waiver is laid out in the Second Level (EB-2) in section 203(b)(2) of the act. Under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” (See INA Section 203(b)(2)).
As can be seen, this does not provide much, if any, guidance on how USCIS should proceed in these types of cases. USCIS did not help matters when it passed its regulations in this area. All USCIS did was copy the language of the above statute verbatim. It was the AAO that ended up defining how to show that your services are in the national interest. The AAO did this in a case called In Re: New York State Department of Transportation (NYSDOT). In that case the AAO laid out a three-part test:
- Show that the area of employment is of “substantial intrinsic merit”.
- Show that any proposed benefit from the individual’s endeavors would be “national in scope”.
- The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the foreign national.”
In deciding to relook at this framework, the AAO stated that they felt that there has been confusion, especially as to the third prong, about how to demonstrate the above three prongs. In addition, the AAO felt that this confusion has caused USCIS to be too narrow in the cases it has approved. More specifically, the AAO seemed to feel there were two main issues. First, in terms of the national in scope, the AAO wanted to make clear that this was NOT a geographic issue. Instead, it is an issue of national importance. Second, in looking at the third prong, too much emphasis has been placed on requiring a showing of harm to the national interest if the application is not approved as well as too much emphasis on showing influence on the field and using that as a yardstick to determine if a person meets the standard. Because of the above, the AAO decided to reformulate the above test.
New Test in Matter of DHANASAR
Under the new framework, and after eligibility for EB-2 classification has been established, 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; 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 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.
- That the foreign national’s proposed endeavor has both substantial merit and national importance;
- That the foreign national is well positioned to advance the proposed endeavor; and
- 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
Prong 1: That the foreign national’s proposed endeavor has both substantial merit and national importance
Looking at the first prong first, this is what the AAO states:
Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors 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.
In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. 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.
Comparing this to the first two prongs of NYSDOT, it is clear that many more people should be able to meet these standards. First, in terms of substantial merit, the AAO is removing any required proof about economic benefit and is willing to accept more esoteric benefits. While we have used this in many cases, it is good to see it immortalized into the actual standard.
Second, it show national importance, the AAO is specifically allowing local impacts that affect national priorities to be used in this regard. In other words, with such a big emphasis these days on the economy and especially on creating jobs, you can use the potential jobs created for a particular endeavor in one state to justify the national importance of the project. This is a major broadening of this criteria.
Again, we have used these arguments already in many cases (especially the global importance equals US national importance) and it is good to see this more formally allowed.
Prong 2: That the foreign national is well positioned to advance the proposed endeavor
This prong is, perhaps, the most interesting. According to the AAO:
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but 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.
We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
It seems that, what the AAO is getting at, is that just saying you want to continue working in your field is not enough. While you may not need a job offer, you do need a plan as to how you will continue your work in your field (be it collaborations you are planning or something similar. It also is looking at your past successes to ensure that you will be able to continue to have success in your area of expertise. In this way, it is also very similar to what was already required under the old standard. It seems that the AAO is trying to open up that standard by saying that you do not have to show substantial success in the past, just a record of success, which is easier to show.
Prong 3: The petitioner must demonstrate, that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus a labor certification.
Again, as above, this is very similar to what the AAO said in NYSDOT, however, it is also much broader. Under the old standard, this was phrased in the negative, you had to show that the National Interest would be adversely affected if you were not granted the waiver of the job and labor certification requirement. The AAO felt this was too restrictive:
In performing this analysis, USCIS may evaluate factors such 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; whether, 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. We emphasize that, in each case, the factor(s) considered must, taken together, indicate 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.
Under the old standard, you had to show why you would help the national interest to “a substantially higher degree” than an available US worker. Under this new standard, you need to show that the US would still benefit from your work (or, at least, this is part of the test). Again, this new standard helps broaden the scope of the NIW and helps many people who may not have qualified previously, to now, at least, have an argument for qualifying.
Conclusion
Overall, the AAO tried to open up the NIW to people who it felt should qualify, but whom USCIS was not qualifying under the old standard. While the intent of the AAO is clear it remains to be seen how USCIS will interpret this new standard. We are hopefully that they will interpret it in the spirit in which it was annunciated, that is liberally. We are also hopeful that this new standard will especially help those in the areas of international relations, scientists whose fields do not garner large number of citations or who have moved to non-traditional jobs as well as the aforementioned business people and entrepreneurs. We will certainly update you as we learn more about how USCIS will implement this new standard.
Lastly, please keep in mind that, even if you filed your NIW case prior to this ruling, this is now the rule that USCIS will apply in your case. Please also remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.