Your Guide to the EB-2 NIW Green Card: The New National Interest Waiver
A QUICK HISTORY OF THE NIW GREEN CARD
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 case created new hope for entrepreneurs, researchers, physicians, businesspeople, artists and more, to achieve permanent residency in the United States.
However, in the years following Dhanasar, NIW adjudications remained inconsistent, leaving immigration lawyers and clients confused about whether and how to use the NIW. In response, the Biden Administration released a statement outlining a series of actions to attract STEM talent and strengthen the US economy and competitiveness. Since the release of this memo and the subsequent policy manual updates adopted by USCIS, NIW approval rates have improved dramatically. Moreover, USCIS now offers a 45-day Premium Processing option, a marked improvement from the 8 month plus wait-times for standard processing.
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 $2,000 – $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 to 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: 1) that they seek employment in an area of “substantial intrinsic merit”; 2) their services are “national in scope” and; 3) that the national interest 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 proved 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 criterion 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 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 or 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.
While the decision in Matter of Dhanasar is highly encouraging it is yet to be seen how NIW petitions will actually be handled by USCIS officers. 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.