New Standards Set for EB-2 National Interest Waiver Petitions

The Administrative Appeals Office (AAO) in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) issued a precedent decision providing a new framework for EB-2 national interest waiver eligibility.

Under section 203(b)(2) of the Immigration and Nationality Act, U.S. Citizenship and Immigration Services (USCIS) may grant a waiver of the labor certification requirements. Obtaining labor certification for permanent residency is an extensive process, and the national interest waiver is a more expedited alternative that allows the foreign national to self-petition without a job offer. A national interest waiver is available for certain foreign nationals with an advanced degree or exceptional ability that will substantially benefit prospectively the United States.

The Dhanasar decision overturns the previous standard found in New York State Dep’t of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), also known as NYSDOT. The decision in NYSDOT held that for national interest waiver eligibility, the foreign national must show: (1) that the area of employment is one of substantial intrinsic merit; (2) the proposed benefit from the foreign national’s work would be national in scope; and (3) that the national interest would be adversely affected if a labor certification were required for the foreign national.

Under the new Dhanasar framework, those seeking a national interest waiver must demonstrate:

  • that the foreign national’s proposed endeavor has both substantial merit and national importance;
  • that he or she is well positioned to advance the proposed endeavor; and
  • that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The new standard aims to be more flexible and less confusing than the standard in NYSDOT. For example, the new framework focuses less on the geographic impact of the endeavor’s benefit; that is, even if the focus is in one geographic area, the endeavor or undertaking may still be properly considered to be of national importance.

Moreover, the Dhanasar framework removes the emphasis for the foreign national to compare him or herself to other U.S. workers. The previous third prong under NYSDOT required that the foreign national demonstrate that he or she would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Importantly, under the Dhanasar framework, the foreign national may still be able to show that it is in the national interest to waive the labor certification requirement even where there are qualified U.S. workers available.

To read the decision in full, please click here.

Categories: Immigration Blog