• New Immigration Standard Would Benefit US Employers, Start-Ups
  • March 9, 2017 | Authors: Kate Kalmykov; Nataliya Rymer
  • Law Firms: Greenberg Traurig, LLP - New York Office; Greenberg Traurig, LLP - Philadelphia Office
  • The Legal Intelligencer

    On December 27, 2016, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Service (USCIS) issued a precedent decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), setting forth a new framework in connection with ­determinations of eligibility for waivers of the labor certification requirement in employment-based sponsorship available in the employment based second (EB-2) category, commonly referred to as a ­national interest waiver immigrant visa petitions (NIW). This new standard described by the AAO is set to benefit significantly a great variety of U.S. employers, including ­start-ups and entrepreneurial ventures.

    Generally, the process of the employment-based permanent residence ­sponsorship is lengthy and requires multiple steps, ­including the testing of the labor market through a labor certification application and a prospective job offer from a U.S. employer. The NIW petition process allows the petitioner to waive these, and other related requirements, by making a showing that doing so is in the national interest.

    In Dhanasar, the AAO set up a new framework which has expanded eligibility for NIW petitions among entrepreneurs and their ventures—a group which, until now, had a more difficult road to permanent residence. This decision also represents a departure from the more stringent standard espoused by the 1998 AAO precedential decision, Matter of New York State Department of Transportation(NYSDOT), 22 I&N Dec. 215 (Comm'r 1998), which, until recently, governed the NIW petition process. Among other factors, the NYSDOT standard required showing that the field of the endeavor had "substantial intrinsic merit," as well as that "any proposed benefit from the foreign national's endeavors will be 'national in scope.'"

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