01/02/2017 - Positive Change for National Interest Waivers

Good News for the New Year
Happy New Year!  It’s always good to start the new year off with a bit of good news.  Clark Lau LLC assists many individuals in seeking permanent residency in the U.S.  While most are employer- or family-sponsored, there are those who are able to self-sponsor based on their own accomplishments.  One such avenue is the National Interest Waiver (“NIW”) route.  Due to one’s accomplishments, one may be able to waive the labor certification application, i.e., waive having to prove to the U.S. Department of Labor that there is a shortage of U.S. workers in his/her work.
Just last week, the Administrative Appeals Office (“AAO”) of the U.S. Citizenship and Immigration Services (“USCIS”) in a recent decision – Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) (“Dhanasar”) – set forth a new legal framework for adjudicating NIWs, overruling the legal standard that had been established in Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) (“NYSDOT”). Dhanasar provides a clearer analytical framework and additional flexibility to those seeking a NIW. 

The AAO explained that a NIW may be granted under the new framework if the following criteria are met: 1) the foreign national’s proposed endeavor has both substantial merit and national importance; 2) he or she is well positioned to advance the proposed endeavor; and 3) that, on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

In its decision, the AAO provided a breakdown of what is required for each of the three prongs. Regarding the first prong, “substantial merit” may be shown through work in a wide range of fields, such as business, technology or medicine, and the activity need not result in economic benefits to the U.S.; the furtherance of human knowledge, on its own, may be sufficient.
Moreover, whether a proposed endeavor is of “national importance” is not evaluated strictly on whether a large geographic area of the country will benefit. In other words, an endeavor that might only benefit a specific geographic area – for instance, an area of high unemployment where the proposed endeavor could employ U.S. workers – could pass muster under the new framework.

The AAO explained that the second prong focuses on the achievements of the foreign national in the relevant field, as well as a plan for future activities and the interest of potential customers, users and investors in the foreign national’s work. Here, recognizing the unpredictability of certain ventures, the AAO commented that petitioners are not required to show that their endeavors are more likely than not to succeed, only that they are well positioned to advance the proposed endeavor.

Finally, the third prong provides a more flexible balancing test that weighs the interest in protecting the domestic labor supply against the benefits to the national interest from the foreign national’s contributions. Unlike the third prong in NYSDOT, which required a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field, the third prong of the new framework requires only that there be a net benefit to the United States by waiving the job offer and labor certification requirements. Relevant factors include whether it is impractical for the foreign national to secure a job offer or for the petitioner to obtain a labor certification and whether the United States would still benefit from the foreign national’s contributions, even if qualified U.S. workers were available for the proposed endeavor.
While Dhanasar will not radically alter our approach to national interest waiver cases, it does provide us with additional flexibility in partnering with our clients to develop a sound case strategy.

The above has been provided for educational purposes.  To find out how this may impact you under your specific circumstances, please contact Clark Lau LLC. 


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