New Standard for the National Interest Waiver
By: Texas Board Certified Immigration Attorney, Ruby L. Powers
January 20, 2017
On December 27, 2016, the Administrative Appeals Office (AAO) announced a new framework to be used when adjudicating National Interest Waiver (NIW) petitions. The previous standard was based on a 1998 case, Matter of New York State Department of Transportation, “NYSDOT”. This new standard clarifies and revises the standard in which the USCIS officials should determine if the foreign worker qualifies for a NIW.
What is a NIW? The NIW is a pathway to an immigrant visa that is available to qualified aliens who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. The NIW was created to exempt individuals from the labor certification process if they can prove that their presence will advance the National Interest of the United States. The NIW also exempts the Foreign National from the requirement of having a job offer.
The new standard laid out in Matter of Dhansanr states that the United States Citizenship and Immigration Services (USCIS) Officer may grant a NIW if the petitioner demonstrates:
That the foreign national’s proposed endeavor has both substantial merit and national importance
This prong focuses on the specific endeavor that the foreign national proposes to take. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.
In considering national importance, the case provides as an example that an individual’s undertaking may have national importance because of its national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.
That he or she is well positioned to advance the proposed endeavor. To determine whether the individual is well positioned to advance the proposed endeavor, the adjudicators should consider: the individual’s education, skills, knowledge and record of success in related or 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.
On balance, it would be beneficial to the United State to waive the requirement of a job offer and labor certification requirement.
The USCIS may evaluate factors such as: whether it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process.
For example, if a doctor holds three (3) graduate degrees in the field tied to the field of endeavor, and the record demonstrates that he possesses considerable experience and expertise in a highly-specialized field. The evidence further shows that innovations in anesthesiology and pain management hold significant implications for the U.S. healthcare industry and its global competitiveness. On balance, the adjudicators could find that the petitioner’s contributions would benefit the United States even assuming that other qualified U.S. workers are available.