NIW GREEN CARD: THE NEW NATIONAL INTEREST WAIVER
On December 27, 2016, the immigration community breathed a collective sigh of relief. After almost 20 years of frustration and confusion over the National Interest Waiver (NIW) standards set forth in NYSDOT, the Administrative Appeals Office of the USCIS issued an overruling decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The decision clarified many of the questions and frustrations surrounding the NIW process, however practitioners still widely experienced inconsistencies in processing. In response, in January 2022, the Biden administration released new measures and directives that have made obtaining the NIW even more straightforward. These developments have opened the door wide for entrepreneurs, researchers, physicians, businesspeople, artists and more, to achieve permanent residency in the United States.
The EB-2 (employment-based second preference) category allows a foreign national to apply for permanent residency in the U.S. The category is reserved for: 1) applicants holding an advanced degree or a bachelor’s degree plus 5 years of experience; 2) those 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.” These applicants must be sponsored by an employer and are also required to complete the Labor Certification process. This latter requirement is meant to prove that there are no other qualified U.S. workers for the foreign national’s position. This process is complex and time-consuming. It also costs the employer anywhere from $10,000 – $6,000+. Due to the costs, liability and time burden, many employers are deterred from sponsoring their employees for green cards in the EB-2 category.
However, the regulations allow for a waiver of the Labor Certification requirement if the foreign applicant’s employment is in the “national interest” (NOTE: the applicant must still either possess an advanced degree or its equivalent or possess exceptional ability). The problem with this waiver provision is that the term “national interest” has never been clearly defined by Congress or USCIS. Instead, prior to Matter of Dhanasar, the USCIS evaluated national interest waivers (NIW) based on a court decision entitled Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (AAC 1998). This decision laid out a three-prong test requiring the foreign national to prove that: 1) they seek employment in an area of “substantial intrinsic merit”; 2) their services are “national in scope” and; 3) national interests would be adversely affected if the applicant was to go through the labor certification process. While maybe not apparent from the plain language of these requirements, part 3 has proven to be very difficult, if not sometimes impossible, to satisfy. After years of complaints, appeals and inconsistencies, the Administrative Appeals Office finally reevaluated NYSDOT and took action to simplify the NIW analysis.
THE NEW STANDARD IN MATTER OF DHANASAR
Matter of Dhanasar has dramatically simplified the NIW process. The new ruling presents the following framework for USCIS’ evaluation of NIW petitions:
(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.
It is helpful to examine each of these factors in detail:
1. The Proposed Endeavor has both Substantial Merit & National Importance
In establishing the first prong the court focuses on the “specific endeavor that the foreign national proposes to undertake” in the U.S., as opposed to the previous standard that required a showing that the general field of endeavor had “substantial intrinsic merit”. The court also clarifies that the endeavor’s value can be measured by its impact in a range of fields such as “business, entrepreneurialism, science, technology, culture, health, or education.” The ruling further indicates that showing evidence of economic impact is “favorable but is not required”, as it is possible to show merit without showing immediate economic impact. The court offers an example: “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.”
In summary, the ruling broadens the definition of substantial merit and national importance to the following:
- The specific job the applicant will perform must hold substantial merit and national importance.
- Substantial merit and national importance can be shown by offering evidence of how the applicant’s work will impact any number of fields.
- It is not generally necessary to show that the applicant’s work will create jobs or provide other economic benefits in the U.S. Examples of non-economic benefits include furthering national security interests, advancing scientific knowledge, etc.
2. Foreign National is “Well Positioned” to Advance the Proposed Endeavor
This element is straightforward: the USCIS wants some proof that the applicant will succeed. The court understands that it may be challenging to forecast future success, so the standard of proof is a preponderance of the evidence (as opposed to the higher standard of “more likely than not”). Some of the factors that USCIS will consider when evaluating this element are: 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.
3. A Waiver is, “On Balance”, Beneficial to the United States
While much more straightforward than the 3rd prong of the previous NYSDOT standard, the 3rd prong in Matter of Dhanasar will still require ample evidence to satisfy. The court outlines the following factors, all of which must be considered together. Our comments are in the bullet points below each point:
a). in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification
- The court in Matter of Dhanasar felt that this criterion was satisfied by virtue of the petitioner’s “considerable experience and expertise in a highly specialized field”.
b). whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and
- For this factor the court restated the significance of the petitioner’s work for U.S. national security and competitiveness. The court also cited that U.S. government funding for the petitioner’s research was a positive factor in establishing the importance of his contributions.
c). whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
- The court did not explicitly evaluate whether the petitioner’s contributions were “sufficiently urgent” to warrant a waiver. Presumably the considerations for national security and the presence of U.S. government funding were sufficient to prove the urgency of allowing the petitioner to forgo the labor certification process.
THE IMPACT OF THE JANUARY 2022 POLICY UPDATES
The Department of State and the Department of Homeland Security made a joint announcement on January 21, 2022, introducing a series of policy changes and measures aimed at expanding the EB-2 National Interest Waiver and O-1A visa categories. These changes offer new pathways and expand on existing policy guidance for individuals who have studied or work in the fields of Science, Technology, Engineering, and Mathematics (STEM), in an effort to boost innovation and job creation throughout the United States. Importantly, the measures resulted in significant updates to the USCIS Policy Manual, the document used by USCIS officers to process cases.
The changes are outlined below, but in summary, the new regulations heavily favor individuals with an advanced degree in a STEM field as well as entrepreneurs with a proven track record of success (job creation, fund-raising, etc). USCIS officers are now explicitly instructed to consider the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, particularly in focused critical and emerging technologies or other STEM areas critical to U.S. competitiveness or national security.
Here are the highlights:
- “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.”
- “Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.”
- “USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.”
- “When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
- The person possesses an advanced STEM degree, particularly a Ph.D.;
- The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
- The person is well positioned to advance the proposed STEM endeavor of national importance.
- The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.”
The decision in Matter of Dhanasar and the subsequent policy changes are highly welcomed. Since these changes were implemented we have seen a dramatic increase in EB-2 NIW approvals. Nonetheless, we recommend an over-abundance of caution in these early stages. It is important that any petition include ample evidence satisfying each prong as well as clear case citations in the support letter. As always, feel free to contact us with questions by clicking below.