In 2016, the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) decided Matter of Dhanasar 26 I&N Dec. 884 (AAO 2016), which clarified and revised the standard for obtaining a national interest waiver (NIW) of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification.
The AAO’s decision vacated the then-existing standard applied by the USCIS, which was set forth Matter of New York State Dep’t of Transp. (NYSDOT). The AAO concluded that NYSDOT did not provide sufficient clarity and flexibility for USCIS in evaluating petitions filed by petitioning employers, as well as by self-petitioning foreign workers. 26 I&N Dec. 884 (AAO 2016).
A. Procedural History
Mr. Dhanasar, the petitioner, is an aerospace engineering researcher and educator. He filed an immigrant visa petition seeking EB-2 classification as a professional with an advanced degree. Mr. Dhanasar also sought an NIW of the job offer.
A USCIS service center director denied Mr. Dhanasar’s visa petition after applying the framework adopted by the AAO in NYSDOT. The director determined that although Mr. Dhanasar qualified for the classification as a member of the professions, granting a national interest waiver would not be in the national interest of the United States.
Mr. Dhanasar appealed to the AAO.
The AAO sustained the appeal and approved Mr. Dhanasar’s petition on grounds fully detailed below.
B. General Requirements for EB-2 Classification Requesting an NIW
In Dhanasar, the AAO noted that immigrant visas are available to qualified immigrants who:
- Are “members of the professions holding advanced degrees” or have “exceptional abilities in the sciences, arts or business” that will “substantially benefit” the U.S. economy, and
- Are sought by a U.S. employer for “their services, arts, professions, or business…” See, INA § 203(b)(2)(A) and 8 U.S.C § 1153(b)(2)(A).
In general, a labor certification process is required for foreign nationals seeking lawful permanent residence (LPR) status under the EB-2 classification. The chief purpose of the Department of Labor’s (DOL) labor certification process is to protect U.S. workers in the domestic labor market.
In Dhanasar, the AAO states,
“…Subparagraph (A) of section 203(b)(2) of the Immigration and Naturalization 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.”
Subparagraph (A) of section 203(b)(2) specifies that immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.”
Employers must first obtain a permanent labor certification from the United States Department of Labor (DOL) under section 212(a)(5)(A)(i) of the INA. A labor certification demonstrates that DOL has determined there are not sufficient workers who are able, willing, qualified, and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed….”
The AAO goes on to acknowledge that under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security has discretion to waive the requirement of a “job offer,” and thus, a “labor certification” under subparagraph (A) if he or she deems that an alien’s services in the sciences, arts, professions, or business are in the national interest.
Therefore, USCIS may use its discretion and approve an NIW to waive the PERM labor certification job offer requirement (the requirement that the foreign worker’s services are sought by a US employer). To qualify for an EB-2 NIW visa classification, a foreign national must: (1) be an advanced degree professional or an individual of exceptional ability, and (2) satisfy the legal standard set forth Matter of Dhanasar (as detailed below).
C. NYSDOT Framework – Pre-Dhanasar
Under the former NYSDOT framework for adjudicating National Interest Waivers, USCIS adjudicators reviewed petitions to determine whether the:
- Petitioner’s area of employment is of “substantial intrinsic merit,”
- Proposed benefit from the Petitioner’s endeavors will be “national in scope,” and
- National interest would be adversely affected if a labor certification were required for the foreign national. 22 I&N Dec. 215, 217 (Acting Assoc. Comm’r 1998).
In Dhanasar, the AAO reassessed NYSDOT framework. Specifically, the AAO found that:
- The term “intrinsic” in the first prong of the NYSDOT framework did not contribute to the analysis and could lead to “unnecessary subjective evaluation.”
- The term “national in scope” was being construed too narrowly, focusing too heavily on the geographic nature of the benefit.
- The third prong related to the national interest being adversely affected had caused confusion both for petitioners and adjudicators making the NIW determination. The NYSDOT decision described the third prong in several different ways, leaving it unclear as to what the prong really requires. Further, the third prong had been misinterpreted to require the petitioner to submit evidence that the NIW was intended to allow the petitioner to forgo. The AAO found that this third prong was not useful for evaluating petitions made by self-employed individuals.
The AAO moved to vacate NYSDOT and adopted a new framework for adjudicating NIW petitions. The new standard was intended to provide greater clarity and apply more flexibly to the circumstances of both petitioning employers and self-petitioning individuals, in “an effort to better advance the purpose of the broad discretionary waiver provision to benefit the United States.”
D. Dhanasar – A New Analytical Framework for Adjudicating NIW Requests
In Matter of Dhanasar, the AAO held that a foreign worker is eligible for a national interest waiver under Section 203(b)(2)(i) of the INA if the Petitioner demonstrates that:
- The proposed endeavor has substantial merit and national importance,
- The petitioner is well-positioned to advance the proposed endeavor, and
- On balance, it would be beneficial to the US to waive the requirements of a job offer and, therefore, of a labor certification
The first prong – substantial merit and national importance – focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence of a positive economic impact is favorable, but not required. In determining whether the proposed endeavor has national importance, its potential prospective impact is considered. An undertaking may have national importance because it has national or even global implications within a particular field. Prospective impact is not evaluated solely in geographic terms. If an endeavor has significant potential to employ U.S. workers or has other substantial positive economic effects, it may be understood to have national importance.
The second prong – the foreign national is well-positioned to advance the proposed endeavor – shifts the focus from the endeavor to the petitioner. An individual’s education, skill, knowledge, and record of success in related or similar efforts, a model or plan for future activities, progress towards achieving the proposed endeavor, and the interest of potential customers, users, investors, or other relevant entities or individuals, is considered in determining whether they are well positioned to pursue the stated endeavor. Petitioners do not need to establish that their endeavor will succeed. They simply need to establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
For the third and final prong, the petitioner must demonstrate 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. Here, USCIS may evaluate factors such as, whether, in light of the nature of the foreign national’s qualifications of 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, whether, even assuming that other qualified workers are available, the United States would still benefit from the foreign national’s contributions, and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process. This test is meant to flexible and apply to a variety of individuals.
E. Burden of Proof
The AAO specified that the new Dhanasar test should be judged under a preponderance of the evidence standard, requiring a showing that the foreign worker more likely than not satisfies the requirements.
F. Outcome for Mr. Dhanasar
The AAO reviewed objective evidence including research articles, works featuring the petitioner, as well as independent objective research on the topic of the petitioner’s endeavor. Also central to the AAO’s analysis were relevant, probative reference letters written on behalf of Mr. Dhanasar by industry and academic leaders.
The AAO found that Mr. Dhanasar should be granted an NIW. He holds advanced degrees and therefore qualifies for a waiver under section 203(b)(2)(A). Additionally, Mr. Dhanasar established the substantial merit and national importance of his proposed endeavor. On balance, it would be beneficial to the U.S. to waive the requirements of a job offer (and therefore of a labor certification) given that Mr. Dhanasar holds three graduate degrees in areas tied to his endeavor and his research would implicate U.S. national security interests and competitiveness that agencies like The National Aeronautics and Space Administration (NASA) and the Department of Defense (DOD) have found “promising and useful.”
G. Practical Implications
The AAO’s decision in Matter of Dhanasar changes the framework for USCIS to apply when evaluating whether to grant an NIW of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification. Petitioners, whether employers or foreign workers, should now tailor their petitions to the new framework. Our attorneys have high approval rates for constructing complex and sophisticated EB-2 NIW Immigrant Petitions seeking LPR status.
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