Are you eligible for a national interest waiver (“NIW”) green card?

New legal framework regarding National Interest Waiver (“NIW”) adjudication by USCIS makes it easier for individuals to obtain green card through the NIW process.

Are you considering filing for a green card based on your employment in the United States? Does the PERM process seem to complex or overly burdensome? If you have an advanced U.S. degree, and you are doing important work in the U.S., you may want to consider the national interest waiver. The USCIS administrative appeals office recently made it easier to qualify for a waiver of the labor certification (PERM) by clarifying the requirements for the national interest waiver (EB-2) green card.

Porter Law Office, LLC has experience with preparing and filing national interest waiver petitions. We are a boutique immigration law firm that guides employers and employees in Columbus, Ohio and throughout the United States through the complicated procedures involved in employment based immigration. Contact Columbus, Ohio green card lawyer at Porter Law Office, LLC to discuss your national interest waiver case.

Is your work in the “national interest” of the U.S.?

National Interest Waiver is now easier for certain self-employed scientists to obtain green card

The legal framework to determine if your work is in the national interest has been recently modified. The AAO decision in Matter of Dhanasar vacated the long-held NIW standard set forth in Matter of NYSDOT.

The new national interest waiver standard is that: USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

Background of National Interest Waiver Statutory Scheme

Under INA sec. 203(b)(2)(B), USCIS may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, under the applicable regulations, of “a labor certification.” 8 C.F.R. § 204.5(k)(4)(ii). That subparagraph states, in pertinent part, that the Secretary “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” See INA sec. 203(b)(2)(i).

While appearing to limit national interest waivers to only aliens possessing exceptional ability in the sciences, arts, or business, 8 C.F.R. § 204.5(k)(4)(ii) was superseded in part by section 302(b)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1743 (“MTINA”). Section 302(b)(2) of MTINA amended section 203(b)(2)(B)(i) of the Act by inserting the word “professions” after the word “arts,” and thereby made the national interest waiver available to members of the professions holding advanced degrees in addition to individuals of exceptional ability.

USCIS may grant a national interest waiver as a matter of discretion if the petitioner satisfies both subparagraphs (A) and (B). Thus, a petitioner who seeks a “national interest waiver” must first satisfy subparagraph (A) by demonstrating that the beneficiary qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(1)–(3) (providing definitions and considerations for making such determinations); see also section 203(b)(2)(C) of the Act (providing that possession of requisite academic degree or professional license “shall not by itself be considered sufficient evidence of exceptional ability”). The petitioner must then satisfy subparagraph (B) by establishing that it would be in the national interest to waive the “job offer” requirement under subparagraph (A).3 See 8 C.F.R. § 204.5(k)(4)(ii). This two-part statutory scheme is relatively straightforward, but the term “national interest” is ambiguous. Undefined by statute and regulation, “national interest” is a broad concept subject to various interpretations.

Third Prong in NYSDOT Problematic and Ambiguous

The AAO in Matter of Dhanasar focused its attention primarily on the third prong in NYSDOT. The third prong states: the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national. While this element sounds simple enough, individual petitioners have had a terrible time trying to unpack its requirements. Proving that something does not do something can be tricky. As a result, the AAO decisions since NYSDOT have gone to great lengths to try to articulate the exact manner in which a petitioner needs to prove this prong.

For example, the AAO had to rephrase the meaning of this prong as requiring that the petitioner to demonstrate that the individual “present a national benefit so great as to outweigh the national interest inherent in the labor certification process.” Again, the AAO tried to explain the prong by stating: “the petitioner must establish that the individual will ‘serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.’ Again, the AAO stated that “it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest.”

These attempts to explain the NYSDOT third prong has ultimately created more confusion. The straw that broke the camel’s back with the NYSDOT’s third prong is that it required the petitioner to submit evidence relevant to the very labor market test that the waiver is intended to forego. Dhanasar sought to simply and clarify the intent behind this prong.

New National Interest Waiver Framework – Greater Clarity and Flexibility

Dhanasar clarified the requirements for a national interest waiver. Under the new Dhanasar framework, 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.

Is Your Work in the National Interest?

If you simply apply the three prongs in Dhanasar to your factual situation, you could probably identify whether or not you are eligible. The first prong in Dhanasar, 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. In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact.

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, USCIS considers factors including, but not limited to: 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.

The AAO, in Matter of Dhanasar, states in relation to the second prong that: [w]e do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

The third prong requires the petitioner to 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. Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary (that is, USCIS) to balance these interests within the context of individual national interest waiver adjudications. This final third prong is new. It does not require a showing of harm to the U.S. national interest, as set forth in NYSDOT. Nor does it require a comparison against U.S. workers in the petitioner’s field. It is a more flexible standard that can be met in a variety of ways, which means it applies to a greater variety of individuals.

Contact an Experienced Columbus Immigration Attorney

National Interest Waiver (EB-2) Representation

The experienced employment immigration lawyer at Porter Law Office, LLC has in depth experience with the EB-2 national interest waiver green card process. Porter Law Office, LLC understands what it takes to overcome the legal hurdles, bureaucratic hassles, and frustrating paperwork associated with the employment based immigration process. Porter Law Office, LLC is conveniently located in Gahanna just outside Columbus, Ohio. If you need help with the national interest waiver process, or any other immigration issue, contact Columbus employment immigration lawyer Matthew R. Porter today for free consultation to discuss your options.