United States: Matter Of Dhanasar Breathes New Life Into NIW Green Card Category

Last Updated: January 25 2017
Article by Susan J. Cohen

At the end of the 2016 calendar year, the Administrative Appeals Office (AAO) published a welcome precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In this case, the AAO has significantly revised the framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep't of Transp.. (NYSDOT).

Because the NIW route to permanent residence (green card) status avoids the labor certification process (which involves testing the U.S. labor market and proving to the U.S. Department of Labor that there are no U.S. workers, able, willing, qualified and available for the job in question) and allows a foreign national to petition for himself or herself (or to have an employer petition on his or her behalf), it is an attractive immigration option for those who qualify. However, the adjudication standard set in the NYSDOT case was confusing and restrictive, and deterred many people from utilizing this immigration category as a pathway to achieving lawful permanent residence status.

Matter of Dhanasar breathes new life into this green card category.

Under INA §203(b)(2)(B)(i), USCIS may grant a national interest waiver of the labor certification requirement, if the petitioner demonstrates that the beneficiary is a member of the professions holding an advanced degree or equivalent (or has exceptional ability in the arts, sciences or business) and will substantially contribute to the U.S.'s economy, culture, educational interests or welfare. The foreign national's contributions must be in the sciences, arts, professions or business and his or her work must be in the "national interest of the United States".

Under the prior NYSDOT standard, a petitioner had to meet a three-part test, proving that: (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national.

New Three-Part Test

In Matter of Dhanasar, the AAO held that this analysis caused confusion and led to unnecessary subjective evaluation. It vacated NYSDOT and adopted a revised and clearer framework for adjudicating national interest waiver petitions. In Matter of Dhanasar the AAO established a new three-part test. Based on the revised framework, 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; (2) 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.

First Prong: Proving the Work Has Substantial Merit and National Importance

In Matter of Dhanasar the AAO recognized that the prior interpretation of the NIW test was not useful in determining whether someone's work has substantial merit and national importance, recognizing that pure science and research offer far reaching benefits to the U.S. It acknowledged that evidence that the endeavor has the potential to create a significant impact may be favorable but is not required, as an endeavor's merit may be established without immediate or quantifiable economic impact. This interpretation is particularly helpful as demonstrating that an applicant's work had already had an "impact" in the field proved elusive for many. The AAO further clarified that the endeavor's merit may be shown in a variety of fields, including in business, entrepreneurialism, science, technology, health, culture or education.

In Matter of Dhanasar the AAO made clear that USCIS will no longer evaluate prospective impact solely in broad geographic terms, recognizing that a localized geographic benefit may still be in the national interest of the United States Accordingly, the new standard stresses "national importance", not "national scope".

Second Prong: Whether the Foreign National is Well Positioned to Advance the Endeavor

The second prong shifts the focus from the proposed endeavor to the foreign national. In reviewing and revising this second prong, the AAO demonstrated the practical and enlightened understanding that just because an entrepreneurial or innovative undertaking may ultimately fail, does not mean that the exercise may not be in our national interest. It stated that it is not requiring petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding the inherent uncertainty of ultimate long-term success, in order to merit a national interest waiver, petitioners must establish that they are well positioned to advance the proposed endeavor. To determine whether someone is well positioned to advance the endeavor, USCIS will 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.

Third Prong: Would it Benefit the U.S. to Waive the Job Offer and Labor-Testing Requirement?

The third prong requires the petitioner to 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. In this decision, the AAO recognized that while on one hand Congress sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply, on the other hand, by creating the national interest waiver, Congress also recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest.

In reevaluating this third prong, the AAO further recognized that the labor certification requirement, which requires employer sponsorship, was particularly challenging for self-employed persons and those who own shares in their companies. Accordingly, USCIS should take into consideration 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.

This revised test offers petitioners the opportunity to demonstrate 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. Accordingly, this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner's field. This more flexible test, which can be met in a range of ways, is meant to apply to a greater variety of individuals.

Conclusion

The new, more flexible NIW adjudication standard outlined in Matter of Dhanasar is a welcome development. If USCIS officers adjudicate NIW petitions according to this revised standard, more applicants should be able to obtain permanent residence on this basis. It is important to remember that this green card category is not just for scientists and inventors. This pathway to permanent residence status can be especially useful for entrepreneurs and others who can meet the required criteria.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Susan J. Cohen
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