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New National Interest Waiver Standard: Removing obstacles for many talented immigrants - January 6, 2017

Despite a wide variety of opinions about immigration, most people agree that a person who will benefit the national interest should be allowed to immigrate. While immigration law includes a path for immigration in the national interest, for many years it has been so narrow and circuitous that it frequently led to disappointment.

 

A precedent Administrative Appeals Office (AAO) decision, Matter of Dhanasar, published December 27, 2016, broadens and straightens that path for many talented individuals by establishing a new standard for assessing when a person's immigration is in the national interest.

 

National Interest Waiver History

To understand the importance of this decision, a brief history: the term “national interest” is not defined in the statute, but was initially interpreted broadly. In 1998, the Matter of New York State Department of Transportation (NYSDOT) was issued, a precedent decision in which the definition was both narrowed and tortured. 

 

While appropriately emphasizing the importance of protecting the U.S. labor market, NYSDOT resulted in requiring proof of a negative: instead of focusing on the benefits an immigrant would bring, the examiners were to consider whether the national interest would be harmed if the immigrant was required to have an employer sponsor him/her through a labor market test, known as “labor certification.”

 

Ironically, in most cases this meant that an immigrant with a job offer (except physicians in physician shortage areas, who can take an alternate route that is not affected by Dhanasar) could not successfully travel the national interest road. The government took the position that most people with job offers should be required to go through labor certification.

 

Labor certification works well for identifying whether U.S. workers meet the “actual minimum requirements” for a job.  However, in most situations, it does not allow consideration of special characteristics such as contributing to the national interest

 

Other categories for immigration without labor certification (extraordinary ability, outstanding professors and researchers, and Schedule A, Group II) recognize achievement measured by specified criteria. Those criteria are more readily applicable to the academic environment or to those who have already made significant progress in their careers. The lack of a reasonable standard for defining national interest prevented or delayed many immigrants with great promise or an actionable idea from gaining permanent residence.

 

Depending on how it is implemented, the new standard should open a pathway to a green card for those whose work will benefit the United States, have a job offer, and are either outside of academia or early in their careers . The decision also removes obstacles for entrepreneurs, who are notoriously absent from other immigrant categories. The category may still be used for self-employment or non-tenure track positions as well.

 

The official name of this pathway is “national interest waiver” (NIW) because it effectively waives the labor certification process.

 

New National Interest Waiver - How it Works

To qualify for a national interest waiver (NIW) a foreign national must either be a professional holding an advanced degree (master’s or above) or demonstrate “exceptional ability.”

 

To prove national interest using the new standard, the foreign national or U.S. employer must demonstrate:

 

  1. The proposed endeavor has 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 waive the labor certification requirement.

 

Regarding the merit of the endeavor, Dhanasar clarifies that it may be found in any number of fields, including business, entrepreneurship, health, culture, science technology, or education. A positive economic benefit, while a plus, is not necessary.  This allows pure science research and “the furtherance of human knowledge” to qualify despite the lack of any immediate commercial applications, according to the AAO.

 

The decision clarifies that “national importance” is not meant to be interpreted geographically. The analysis should instead focus on “potential prospective impact.” Thus, a local endeavor could still have national importance, such as if it employs workers in an economically depressed area or significantly advances a particular field. 

 

Regarding the foreign national's “positioning” to advance the national interest, Dhanasar invites consideration not only of education, skills, knowledge and achievements, but also articulated plans, progress, and interest by others (such as investors) in the endeavor.

 

Focusing on the positioning of the person to advance the endeavor rather than on the likelihood of ultimate success wisely recognizes the “inherent uncertainty” of peering into the future, as stated in the Dhanasar decision. The AAO acknowledges, “many innovations or entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.”

 

Regarding whether waiving labor certification would be beneficial to the U.S., Dhanasar explicitly shifts from instructing examiners to restrict access for those who could theoretically traverse labor certification. The examination of what ultimately benefits the United States should be broader , taking into consideration real life circumstances presented in each petition. 

 

For example, the impracticality of securing a job offer for an entrepreneur or obtaining a labor certification in a particular situation for someone with unique but not easily quantified skills can now be considered.  

 

In vacating NYSDOT and adopting this new standard the AAO is encouraging examiners to remove the “Detour Ahead” sign from the National Interest Waiver road, which is a welcome development.