By Attorney Farhad Sethna © 2017
On December 27, 2016, the Administrative Appeals Office (the government agency in the USCIS which oversees decisions of the USCIS to decide if they are correct or not) decided a case on the National Interest Waiver. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
The Dhanasar case vacated (nullified or cancelled) the previous NIW precedent decision Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Associate Commissioner 1998) which was extremely restrictive of national interest waivers.
In Dhanasar, the Administrative Appeals Office determined that the USCIS may grant a National Interest Waiver if the petitioner demonstrates:
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 job offer and labor certification requirements
The self-petitioner in the Dhanasar case was a researcher and educator in the field of aerospace engineering. He filed a immigrant visa petition seeking a “National Interest Waiver” of the job offer.
The Director of the Texas Service Center denied the petition. The petitioner appealed to the Administrative Appeals Office, and upon de novo (like new) review, the AAO agreed with the petitioner, reversed the District Director’s decision, and approved the petition.
The AAO decided that their previous decision in NYSDOT (above) was “ripe for revision”. The AAO then vacated NYSDOT and adopted a new framework for adjudicating National Interest Waiver petitions. In doing so, the AAO intended that the new framework would “provide greater clarity, apply more flexibility 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.”
Standard of Review:
The AAO determined that the USCIS may grant a National Interest Waiver if the petitioner satisfies the three prongs above, which must be proven by a relatively low standard- “preponderance of the evidence.” What this simply means is that it is more likely than not (over 50%) that the petitioner meets each of the three prongs above.
In considering the preponderance of the evidence, the USCIS should consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence submitted.
It is important to note that the evidence does not need to prove that an alien’s topic of research or expertise translate into immediate or quantifiable economic impact.
Likewise, the more relaxed standard under Dhanasar requires that the USCIS look at broader implications in determining “national importance”. Under Dhanasar, “even ventures and undertakings that have as their focus one geographic area of the United States may properly be assessed as having national importance”. For example, an economic endeavor that has “significant potential to employ US workers”, especially if such an endeavor is in an economically depressed area, can be considered by the USCIS to have national importance.
Under the second prong, the alien needs to prove, under the same preponderance of the evidence standard, that he or she is well positioned to advance the proposed endeavor.
In examining the petitioner’s ability the USCIS should consider factors including but not limited to, the individual’s:
- Knowledge and a record of success in related or similar efforts;
- A model or plan for future activities;
- Any progress toward achieving the proposed endeavor; and
- The interest of potential customers, users, investors and other relevant entities or individuals
The burden then shifts to the USCIS to determine whether the petitioner satisfies the third prong. It is within the USCIS’ discretion to determine whether the national interest would be served in waiving the labor certification process. In order to perform this analysis, the Dhanasar decision instructs adjudicators to evaluate factors including:
- In light 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 US qualified workers are available or not, that the U.S. will still benefit from the foreign national’s contribution; and
- Whether the national interest is sufficiently urgent to warrant foregoing the labor certification process.
The USCIS does not require a showing of harm to the national interest if the petitioner is not approved, nor does it require a comparison of the petitioner with U.S. workers in the petitioner’s field.
Per the Dhanasar decision, in each case, these factors must be considered taken together, and indicate that on the balance, it would be beneficial to the United States to waive the requirements of a job offer and, therefore, the labor certification. The “on balance” standard once again indicates the application of the “preponderance of the evidence” standard.
Application and analysis:
With the Dhanasar decision, the USCIS has considerably reduced the very high standard set by NYSDOT. The precedent decision in Dhanasar could open up the ability of very highly qualified individuals to seek and obtain National Interest Waivers if they satisfy the three-prong test set forth in Dhanasar.
Given the analysis above, and the clear cut regulation on this matter (8 C.F.R. §204.5(k)), it seems much more likely that other qualified individuals including researchers, and even business people or artists might qualify under the National Interest Waiver standard as Aliens of Exceptional Ability.
Of course, each and every case needs to be scrutinized on its own merits to determine whether it meets the regulations as well as the standards set forth in Dhanasar.
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.