A ruling from the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) establishes new eligibility criteria for “national interest waivers” (NIWs). Matter of Dhanasar, Int. Dec. No. 3882, 26 I&N Dec. 884 (AAO 2016). The NIW is a type of employment-based immigrant visa petition in the second preference (EB-2) category. Normally, a petition for an EB-2 immigrant visa must include an employment offer and a labor certification from the Department of Labor. The NIW waives those requirements. USCIS had relied on the decision in Matter of N.Y. State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), to determine eligibility for NIWs. The decision in Dhanasar overturns NYSDOT and establishes a more consistent standard.
EB-2 visas are available to individuals “who are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.” 8 U.S.C. § 1153(b)(2)(A). According to the statute, the individual’s exceptional ability must have the potential to “substantially benefit” the nation. Id. The individual must have an offer from an employer in the U.S., and they must obtain a labor certification, which basically shows that hiring an immigrant will not adversely affect U.S. workers. 8 C.F.R. § 204.5(k)(4)(i); 20 C.F.R. §§ 656.17(h)-(i).
USCIS is authorized by statute to waive the job offer and labor certification requirement by issuing an NIW, if doing so would “be in the national interest.” 8 U.S.C. § 1153(b)(2)(B)(i), 8 C.F.R. § 204.5(k)(4)(ii). The NYSDOT decision established a three-part test that required a prospective immigrant to establish (1) that there is “substantial intrinsic merit” in their field of employment, (2) that the likely benefits of their work will be “national in scope,” and (3) that requiring a labor certification would “adversely affect…the national interest.” Dhanasar, 26 I&N Dec. at 887, quoting NYSDOT, 22 I&N Dec. at 217.
The AAO notes that each of these prongs has caused confusion in the almost 20 years since NYSDOT was decided. It focuses on the third prong, which it states is not even defined consistently within the NYSDOT opinion. Rather than try to sort out the contradictions, the AAO opted for a “reassessment” of the entire test. Dhanasar at 887.
The Dhanasar ruling establishes a new test that clarifies the first and third prongs and replaces the second. Under the new test, a petitioner must show that (1) their “proposed endeavor has both substantial merit and national importance”; (2) they are “well positioned to advance the proposed endeavor”; and (3) “on balance,” the U.S. would benefit from waiving the job offer and labor certification requirements. Dhanasar at 889. The AAO goes on to describe these prongs in some detail.
Employment visa attorney Samuel C. Berger represents New York City and Northern New Jersey employers petitioning for immigrant or nonimmigrant employment-based visas for their employees. To schedule a confidential consultation to see how our experienced and skilled team can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.
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