New Framework from AAO for NIW Adjudication16 Jan 2017
On December 27, 2016, the Administrative Appeals Office (AAO) issued a precedent decision in Matter of Dhanasar that modifies the framework for how the U.S. Citizenship and Immigration Services (USCIS) will now adjudicate national interest waiver (NIW) petitions. On its face, the new three-prong test created by the AAO in Dhanasar appears to be a bit clearer and more flexible than the one it replaces. It remains to be seen, however, how the USCIS will ultimately interpret and implement the new framework when adjudicating NIW petitions.
Background on NIW Petitions: NYSDOT Overruled by Matter of Dhanasar
Ordinarily, an employment-based, second preference (EB2) petition can only be filed after a petitioning employer obtains a labor certification, which evidences that no qualified U.S. worker is willing to fill the position. However, if the foreign national can establish that it would be in the national interest to waive the requirements of a job offer and a labor market check, and there is prospective national benefit, then an NIW petition may be granted.
Prior to Matter of Dhanasar, the test for determining whether to grant an NIW was based on Matter of New York State Department’ of Transportation (NYSDOT), a case decided by the AAO in 1998. Under NYSDOT, the petitioner had to demonstrate that (1) the area of employment was of substantial intrinsic merit, (2) the benefit offered by the foreign national would be national in scope, and (3) the national interest would be adversely affected if a labor certification were required for the foreign national.
It was this third prong in the Dhanasar ruling with which the AAO mainly took issue, and which led to the dismantling of the NYSDOT framework. As explained by the AAO, this third prong was confusing and vague, and, most troubling, was often interpreted to mean that the petitioner was required “… to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego.”
New Analytical Framework Established by Matter of Dhanasar
Under Dhanasar, the USCIS may grant an NIW if the petitioner demonstrates by a preponderance of the evidence that (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, and (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.
Substantial Merit and National Importance Under Dhanasar
The AAO emphasizes that the national importance and substantial merit requirement is focused on the specific endeavor the foreign national plans to undertake. Merit may be demonstrated in a range of areas and the potential to create significant economic impact is favorable, but not required. National importance will be assessed according to its broad implications rather than solely on the basis of geographic terms.
Foreign National’s Position to Advance the Endeavor
This prong changes the focus to the foreign national and examines whether that person actually will be able to advance the proposed endeavor. The AAO included numerous, non-exhaustive factors that will be considered. These include the individual’s education, record of success in related or similar efforts, and knowledge. Additionally, the USCIS will consider a model or plan for future activities and any progress made towards achieving the proposed endeavor.
Benefit to the United States
This prong requires the consideration of numerous factors. The USCIS should consider whether it would be impractical for the foreign national to secure a job offer or for the petitioner to obtain a labor certification. Additionally, the officer should determine whether the United States would still benefit from the foreign national’s contributions, even if other U.S. workers are available. Finally, the USCIS should examine whether the foreign national’s potential contributions are urgent enough to warrant bypassing the labor certification. The AAO specifically emphasizes that each of these factors must be taken together and, on balance, should demonstrate that it would be beneficial to the U.S. to waive the job offer and labor certification requirement.
After nearly twenty years, Matter of Dhanasar provides an important change in the manner NIW cases will be adjudicated. This case appears to create a more flexible and realistic framework for the NIW category. The hope now is that this case ultimately will lead to a broader spectrum of foreign nationals being eligible for this immigration benefit.
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