The national interest waiver (NIW) is a much sought after path to a U.S. permanent resident card. It is a variant of the EB2 green card category for employment-based immigrants. In order to qualify for the NIW, an applicant must first demonstrate that he or she qualifies for the EB2 green card category itself. There are two ways to qualify for EB2, which are (1) be a member of the professions holding an advanced degree, or (2) be an individual of exceptional ability in the sciences, arts, or business, who will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.
There is considerable jurisprudence just on qualification for the EB2 category by itself, but for purposes of this article, we will assume the NIW applicant has otherwise qualified for EB2. Such a person may then seek the NIW. The “waiver” part of the national interest waiver refers to a waiver of the general EB2 requirement that the applicant have a job offer from a U.S employer, and that the employer procure a “permanent labor certification” from the Department of Labor, which certifies that there are no able, willing, qualified and available U.S. workers to fill the employer’s need. The job offer and labor certification requirements of the EB2 green card category are designed to protect U.S. workers from foreign competition. These administrative burdens make it considerably more difficult for employers and their preferred foreign national workers to secure a green card for the latter. The NIW was implemented by Congress in recognition of special situations in which it is in the national interest of the United States to allow a foreign national to come to the United States to work without requiring him or her to have a formal job offer and permanent labor certification.
In December 2016, the U.S. Citizenship & Immigration Service’s Administrative Appeals Office vacated nearly 20 years of NIW jurisprudence when it issued Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In Dhanasar, the AAO set forth a new framework for analyzing whether an applicant qualifies for the NIW. The three requirements for an NIW are now as follows:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- 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.
Regarding the requirement of substantial merit, the AAO noted that such merit can be demonstrated in a “range of areas such as business, entrepreneur[ship], science, technology, culture, health, or education.” The AAO also indicated that while the potential for the endeavor to have a significant economic impact may be a favorable consideration, it is not necessarily a requirement. Other endeavors relating to “research, pure science, and the furtherance of human knowledge” may also show substantial merit.
One of the most notable changes that Dhanasar implemented is that the endeavor now only has to have “national importance.” Under the prior NIW analytical framework, it had been required to show that the endeavor was “national in scope,” which often led to an undue focus on the geographic reach of the endeavor. With Dhanasar, the AAO clarified that endeavors with a limited geographic scope may nonetheless qualify as having national importance. As an example, the AAO noted that an endeavor which “has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.” Under the prior NIW framework, it was very difficult for entrepreneurs to show that the localized employment their endeavors generated was “national in scope,” even if the endeavor carried great potential for employing U.S. workers or otherwise making a positive economic impact. Now, under Dhanasar, the door for entrepreneurs to the NIW appears to be more feasible, as the potential for expanded employment of U.S. workers may qualify as having “national importance.”
In examining whether an NIW applicant is “well positioned to advance the proposed endeavor,” the AAO instructs that a number factors will be considered, including “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.” In essence, it must be shown that it is feasible for the NIW applicant to advance his or her proposed endeavor. This is not to say that the applicant must have a job offer per se (that would defeat the purpose of the NIW), but applicants should be able to demonstrate that there is a feasible context in which the applicant can advance the proposed endeavor. The AAO also took care to note that it is not a requirement to show that the endeavor itself is more likely than not to succeed; rather, the applicant need only show it is more likely than not that he or she is well positioned to advance the endeavor.
Finally, in determining whether, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirement, the government will now consider factors such as “whether, 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; whether, even assuming that other qualified U.S. 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 forgoing the labor certification process.” As an example, the AAO noted that, due to the nature of their work, some entrepreneurs and inventors may have difficulty securing a job offer and labor certification, but it may nonetheless be in the national interest for them to come and work in the U.S. Unlike under the old NIW analysis, the third prong of the Dhanasar NIW analysis does not require a showing of harm to the national interest if the NIW is not granted, or a comparison against U.S. workers in the petitioner’s field.
In truth, there is still a strong element of subjective judgment in the NIW analysis, even under the new NIW framework issued in Dhanasar. However, Dhanasar does eliminate a number of the ambiguities that had previously plagued NIW applicants and their attorneys for years. Additionally, as noted above, it appears that Dhanasar may create a more viable path to the NIW for entrepreneurs than existed under the previous NIW analytical framework.