NATIONAL INTEREST WAIVERS

Certain professionals working in areas which directly benefit the United States can apply for US permanent residence without their employer agreeing to act as a sponsor. These self-filing petitions are regularly called National Interest Waivers. Along with the lack of need for a sponsor, the main benefit of this category is the avoidance of the labor certification process.

The employment based Second Preference Category (EB-2) includes members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category normally requires a job offer and labor certification, USCIS may waive this requirement if the work of the alien is in the "national interest".

Statements by experts concerning the importance of their work to the overall well-being of the nation are considered, along with past accomplishments and the need for their particular type of skill in the U.S. This standard has not been particularly well defined by USCIS. Successful cases will prove that the alien's presence will improve: the US economy; US working conditions; the educational system of the US; health care; housing; the environment; or an interested US government agency has requested the waiver.

In August of 1998, USCIS (then INS) attempted to further define this standard through the New York State Dept. of Transportation case (NYSDOT). NYSDOT states: (1) the applicant must seek to work in an area of "substantial intrinsic merit"; (2) the applicant must provide a benefit that is national in scope; and (3) the benefit to the US must considerably outweigh the inherent national interest in protecting US workers through the labor certification process. The standard established by NYSDOT remains vague and difficult to define.

Recently, on December 27, 2016, the Administrative Appeals Office ("AAO") released to the public a new adopted legal decision (Matter of Dhanasar) for I-140 EB-2 National Interest Waiver (NIW) petitions. The new decision effectively replaces the previous NYSDOT three-prong test discussed above.

The Dhanasar decision provides the following three pronged test for NIW applicants to qualify for a waiver of the job offer requirement:

The waiver applicant's proposed endeavor must have both substantial merit and national importance.
The waiver applicant must demonstrate that they are well positioned to advance the proposed endeavor.
The waiver applicant must demonstrate that it would be beneficial to the United States to waive the job offer and labor certification requirements.

The new first prong addresses whether the applicant's proposed endeavor has substantial merit and national importance. In the Dhanasar decision, the "endeavor" appears to be the personal endeavor of the applicant instead of the field in general. Therefore, one need to show that the personal endeavor of the applicant has intrinsic merit and national importance, rather than the field as a whole.

In terms of "national importance", the AAO alluded to the fact that an undertaking may have national or global implications within a particular field, even if the activities may be based in a certain geographic area. This may mean that petitioners/beneficiaries working in normal private commerce might still qualify under the new framework if they can soundly justify the "national importance" of their proposed endeavor, even if they are not publishing as a pure academic researcher.

Furthermore, the new 2nd and 3rd prong resemble the old 3rd prong requirement where USCIS evaluate applicant's qualifications and determine if it would be beneficial to waive the labor certification process. In the decision, USCIS used indicators such as funding from government-related agencies, membership, and media reports to support the new 2nd and 3rd prongs. When evaluating whether one is well-positioned to advance his/her proposed endeavor, USCIS focused on "education background, skills, knowledge, record of success in related to 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."

Please contact ILG for a case-specific evaluation of your National Interest Waiver case.