USCIS sets out new standard for National Interest Waiver petitions

In a recent decision by the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS), the AAO set out a new standard to adjudicate National Interest Waiver (NIW) employment based immigrant visa petitions.

As background, an employment based immigrant visa petition in the advanced degree or exceptional ability category requires an employer to first test the U.S. labor market and obtain certification from the Department of Labor that there were no ready, willing and able U.S. workers found to fill the position offered by an employer before the foreign national beneficiary can be certified for the position. The labor certification requirement can be waived if the waiver is in the national interest. It is how to determine “the national interest” that is at the core of this decision.

The Matter of DHANASAR 26 I&N Dec. 884 (AAO 2016) decision adopts a new framework for deciding NIW petitions. To be approved, a NIW petition must show that: (1) the endeavor proposed by the foreign national has national importance and substantial merit; (2) that the foreign national is in a position to advance the endeavor; and (3) that it would be beneficial to the U.S., on balance, to waive the job offer and labor certification requirements, as a matter of discretion. The petitioner in a NIW case can be the employer, or the foreign national can self petition.

The Matter of DHANASAR case overruled a 1998 case, Matter of New York State Department of Transportation (NYSDOT). That case had required a petitioner to meet a three prong test: (1) that the area of employment was of substantial intrinsic benefit; (2) that any proposed benefit from the foreign nationals work would be national in scope; and (3) that the national interest would be adversely affected if labor certification were required for the foreign national.

The AAO found certain portions of the NYSDOT decision had proved to be unworkable, especially the third prong. The AAO reasoned that the third prong of the test could be misinterpreted so that some petitioners believed that evidence was needed regarding the labor market test that the waiver was designed to eliminate, and that other petitioners believed that evidence was needed “comparing foreign nationals to unidentified U.S. workers.” The AAO scraped the third prong and replaced it requiring a broad showing that the benefit to the United States is “sufficiently urgent” from the foreign nationals contributions to merit the waiver without requiring a demonstration of harm to the national interest or a comparison “against U.S. workers in the petitioner’s field.”