• USCIS Unveils New Eligibility Standard for National Interest Waivers
  • January 30, 2017
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In a precedent decision issued late Tuesday, the USCIS Administrative Appeals Office (AAO) announced a new analytical framework for determining whether a foreign national pursuing employment-based permanent residence in the EB-2 category is eligible for a discretionary waiver of the job offer and labor certification requirements in the U.S. national interest. The decision is intended to make the waiver more broadly available to foreign nationals pursuing endeavors that benefit the United States, including entrepreneurial ventures.

    Since 1998, national interest waivers have been governed by a prior AAO precedent decision, Matter of New York State Department of Transportation (NYSDOT), which set forth a restrictive and much-criticized test of eligibility. As a result of NYSDOT’s rigid standards, national interest waivers were difficult to obtain, and were rarely granted except in a narrow class of cases typically involving foreign nationals working in STEM fields.

    The new AAO decision, Matter of Dhanasar, vacates the NYSDOT test and replaces it with a more flexible standard. To be eligible for a national interest waiver under the new test, an EB-2 petitioner - either the foreign national or an employer - must meet all of the following criteria by a preponderance of the evidence:
    1. The foreign national’s proposed endeavor has both substantial merit and national importance. A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health and education. The petitioner is not required to show that the endeavor will bring immediate or quantifiable economic benefit to the United States, though evidence to show the endeavor’s potential to create significant economic benefit is a favorable factor. The petitioner must show that the foreign national’s proposed endeavor has “national importance,” which may include local or regional endeavors. An endeavor that has significant potential impact to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, may have national importance.
    2. The foreign national is well positioned to advance the proposed endeavor. To determine whether the foreign national meets this prong of the test, USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor and the interest of potential customers, users, investors or other relevant entities or individuals. Significantly, the petitioner is not required to show that the endeavor is more likely than not to ultimately succeed.
    3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. To meet this prong of the test, USCIS will, among other factors, consider whether the United States would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
    If a foreign national satisfies these criteria, USCIS may issue a national interest waiver in its discretion.

    What the Decision Means to Employers and Foreign Nationals

    After years of rigid national interest waiver standards and a high rate of denials, the Dhanasar decision is a positive step toward broadening the availability of the waiver to eligible foreign nationals and their employers. However, the grant of a waiver remains within the discretion of USCIS and much will depend on how adjudicators apply the Dhanasar test in practice. Fragomen will closely monitor national interest waiver case outcomes under the new standard, and will provide updates as trends emerge.