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Government Clarifies Standard for Obtaining National Interest Waiver

In a precedent decision, the USCIS Administrative Appeals Office (AAO) has revised the analytical framework for assessing eligibility for National Interest Waivers, a permanent residence category frequently used by experts in science, business and other fields.  The case is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

This means that USCIS may now grant a National Interest Waiver if the petitioner demonstrates that: (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) on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The Immigration and Nationality Act makes immigrant visas available to “qualified immigrants 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 AAO vacated a 1998 decision which had apparently been confusing and had yielded contradictory results, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998):

Accordingly, our decision in NYSDOT is ripe for revision. Today, we vacate NYSDOT and adopt a new framework for adjudicating national interest waiver petitions, one that will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.  Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, , USCIS may approve the national interest waiver as a matter of discretion.

National Interest Waivers are one of several permanent residence categories for highly accomplished individuals.  Others are persons of “extraordinary ability” in the arts, sciences, business or athletics, “outstanding professors or researchers,” and professional workers with bachelors degrees or advanced degrees.  Deutsch, Killea and Eapen handles all of these types of cases.  Contact one of our immigration attorneys, if you would like to discuss such a case.

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