New standard may make it easier for foreign nationals to get National Interest Waiver

The U.S. Citizenship and Immigration Services Administrative Appeals Office has issued a precedent decision in Matter of Dhanasar that sets new and broader standards for assessing eligibility for permanent resident status under the National Interest Waiver.

The National Interest Waiver allows foreign nationals to self-petition for permanent resident status directly or through an employer without the necessity of a job offer or testing the job market through the labor certification process if the foreign national’s employment would be in the national interest of the United States.

In Matter of Dhanasar, issued in December 2016, the AAO revisited and vacated Matter of New York State Department of Transportation, a 1998 decision that established the framework for evaluating National Interest Waivers. That case set a three-pronged test that required foreign nationals to show that (1) the proposed employment was of “substantial intrinsic merit”; (2) the benefit of the proposed employment would be “national in scope”; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national. This standard made it difficult to obtain a National Interest Waiver, as it was susceptible to subjective interpretation by immigration officers who, in most cases, interpreted the standards strictly.

Under the Dhanasar standard, foreign nationals will be required to show that (1) the proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The new standard presents a more flexible approach to evaluating eligibility for the National Interest Waiver by recognizing that a wide range of endeavors may be of substantial merit – such as business, entrepreneurialism, science, technology, culture, health or education – without necessarily having immediate or measurable economic impact. It eliminates the focus on geographic breadth of the benefit by recognizing that an endeavor may have national importance even if it is local or regional, or has national or global implications within a particular field. It also eliminates the requirement that the foreign national be compared with other U.S. workers in the applicable field to show “harm to the national interest.”

While it remains to be seen how the USCIS will interpret this new analytical framework – or whether changes will be coming with the Trump Administration – the Dhanasar decision opens the way for more foreign nationals to qualify for the national interest waiver such as post-doctoral researchers, start-up founders, and self-employed entrepreneurs.

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