Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - Article 1: New Framework for EB2 National Interest Waivers

EB2 National Interest Waiver

 

Introduction: Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

On December 27, 2016, the Administrative Appeals Office (AAO) issued a precedent decision in the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) [PDF version]. The decision addressed when the United States Citizenship and Immigration Services (USCIS) may grant a national interest waiver to a petitioner seeking an immigrant visa for a foreign national in the employment-based second preference category [see article].

The AAO's decision vacated a previous precedent decision on the same issue in the Matter of New York State Dep't of Transportation (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998) [PDF version]. The AAO's decision is notable in that the AAO seldom produces for-precedent decisions. In fact, the AAO had only rendered seven precedent decisions in the over 18 years subsequent to its decision in the Matter of NYSDOT.

In its decision, the AAO held that a petitioner must demonstrate the following in order for an EB2 petition to qualify for a national interest waiver:

1. The foreign national's proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor; and
3. It would be, on balance, beneficial to the United States to waive the job offer and labor certification requirements for the petition.

In this article, we will examine the relevant statutes, the AAO's now-vacated test from NYSDOT, and the new analytical framework established in the instant case. To read about how the new framework was applied to the facts of the instant case, please see our full article after reading this one [see article].

Legal Background: 26 I&N Dec. at 884-88

The EB2 category found in section 203(b)(2)(A) of the INA makes immigrant visas available to the following individuals:

Qualified immigrants who are members of the professions holding advanced degrees or their equivalent; or
Qualified individuals 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.

Section 203(b)(2)(A) makes immigrant visas available to such individuals only if their “services in the sciences, arts, professions or business are sought by an employer in the United States.” This means that, in general, in order for an individual to procure an immigrant visa in the EB2 category, he or she must already have a job offer.

Under section 212(a)(5)(A)(i) of the INA, an employer seeking an immigrant visa for a foreign worker in the EB2 category must obtain permanent labor certification from the Department of Labor (DOL) [see category]. The labor certification requirement poses a challenge for many petitioners because it requires the employer to demonstrate to the satisfaction of the DOL that there are not sufficient U.S. workers who are able, willing, qualified, and available at the location where the petition beneficiary is to engage in employment (see 20 C.F.R. 656.17(h)(1) (2016)). Furthermore, the employer cannot tailor the position to the petition beneficiary's qualifications; rather, the employer must list the position's actual minimum requirements — thus potentially broadening the field of qualifying applicants — in order for the labor certification application to be granted (see 20 C.F.R. 656.17(i)(1)).

Please see our full article on challenges related to labor certification for those seeking to use employment-based immigrant visa categories for investment immigration [see article].

However, section 203(b)(2)(B) of the INA offers a very limited waiver of the requirement that petition beneficiaries must already have a job offer at the time of the filing of the EB2 petition. This provision allows the Secretary of Homeland Security to waive the job offer requirement when he or she “deems it to be in the national interest.” This means that, if the individual is otherwise qualified for EB2 classification under section 203(b)(2)(A), and if the Secretary of Homeland Security determines that waiving the job offer requirement found in section 203(b)(2)(A) is in the national interest, an individual may qualify for an immigrant visa in the EB2 category without a job offer. Therefore, a national interest waiver allows for a petition to be approved without a position being certified by the DOL.

Unfortunately, the INA does not provide further guidance on the rules for qualifying for a national interest waiver. The primary guidance prior to the instant case was found in the Matter of NYSDOT, 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998). In the Matter of NYSDOT, the AAO created a test for determining whether a petitioner establishes that the petition qualifies for a national interest waiver. In order to qualify under the Matter of NYSDOT test, a petitioner had to establish the following:

1. That the area of employment is of “substantial intrinsic merit”;
2. That any proposed benefit from the individual's endeavors would be “national in scope”; and
3. That the national interest would be adversely affected if labor certification were required for the individual.

Reassessing the NYSDOT Test

The AAO took the position that it was time to reassess its precedent decision in the Matter of NYSDOT. It based this determination on its “experience with [the] decision in the intervening period.”

First, the AAO stated that the first prong of the NYSDOT “has held up under adjudicative experience.” However, the AAO determined that the term “intrinsic” had added “little to the analysis yet is susceptible to unnecessary subjective evaluation.” In short, the AAO believed that the term “intrinsic” had led to adjudicators making too many subjective case-by-case determinations and stripped the adjudication process of consistency.

Similarly, the AAO found that the second prong of NYSDOT “has caused relatively few problems in adjudications.” However, the AAO determined that the term “national in scope” had often been “construed too narrowly by focusing primarily on the geographic intent of the benefit.” The AAO noted that in NYSDOT it approved the petition in question where a civil engineer's employment in New York City was determined to be national in scope because of the geographic connections between New York's bridges and roads and the national transportation system. The AAO found that individuals seeking national interest waivers to work in certain locally or regionally based endeavors had sometimes found it difficult to establish eligibility under NYSDOT because of the “national in scope requirement.” The AAO noted that such endeavors may be of national importance that is nevertheless “difficult to quantify with respect to geographic scope.”

The AAO concluded that the most serious problem in the NYSDOT framework for both petitioners and adjudicators was found in the third prong. The primary problem that the AAO observed was that the third prong was explained in different ways within the NYSDOT decision itself. First, the AAO in NYSDOT had taken the position that the petitioner must establish that the national interest would be adversely affected if labor certification were to be required. However, that was not the only formulation provided in NYSDOT. The AAO had also ruled that the petitioner must demonstrate that the individual “presents a national benefit so great as to outweigh the national interest inherent in the labor certification process.” Thus, under NYSDOT, a petitioner is required to establish not only that the individual's employment would benefit the national interest but also that it would “outweigh” the national interest in requiring labor certification. The AAO then pointed to yet a third version of the third prong articulated in NYSDOT, requiring the petitioner to establish that the individual would “serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” Finally, the AAO explained that a fourth formulation of the third prong — which the AAO in the instant case stated “may be construed as either a fourth restatement of prong three or as an explanation of how to satisfy it” — required that “it clearly must be established that the alien's past record justifies projections of future benefit to the national interest.” The AAO observed that adjudicators had relied on a footnote to this fourth formulation of prong three to interpret it as requiring that petitioners show “a past history of demonstrable achievement with some degree of influence on the field as a whole.”

The AAO found that the several restatements of prong three within NYSDOT created a serious challenge for both petitioners and adjudicators. Furthermore, the AAO found that the third prong could be misconstrued as to require petitioners to submit, and adjudicators to evaluate, evidence relating to the job market. This is problematic in that the national interest waiver is intended to waive the requirement that the petitioner submit evidence to satisfy the labor market test. Specifically, the third version of prong three seems to require petitioners to “submit evidence comparing foreign nationals to unidentified U.S. workers.” The AAO noted that the third prong has been especially difficult to satisfy for petitioners seeking self-employment, despite the fact that NYSDOT acknowledged that “there are certain occupations wherein individuals are essentially self-employed.” Finally, the AAO found that the concept of requirement of proving harm-to-national-interest is not required by statute, and that it “unnecessarily narrows” the Secretary of Homeland Security's discretionary authority to grant a national interest waiver.

New Analytical Framework: 26 I&N Dec. 888-91

Thus, because of the issues described in the previous section, the AAO in Matter of Dhanasar vacated its decision in the Matter of NYSDOT and articulated a new analytical framework for adjudicating national interest waiver petitions.

Under the new framework, the petitioner must establish the following by a preponderance (weight) 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, also of labor certification.

Provided that the petitioner establishes each of the three elements by the preponderance of the evidence, the USCIS may approve a national interest waiver in its discretion. The petitioner bears the burden of establishing that the foreign national merits the favorable exercise of discretion even where the petitioner satisfies the three elements of the Dhanasar framework.

Prong One

The AAO explains that this prong refers to the endeavor itself, rather than the qualifications of the foreign national. The AAO states that the substantial merit may be demonstrated in a variety of areas. These areas include, but are not necessarily limited to:

Business;
Entrepreneurialism;
Science;
Technology;
Culture;
Health; or
 Education.

The AAO may consider evidence that the endeavor would have a significant economic impact in favor of granting the national interest waiver, but such evidence is not required. The merit of an endeavor can be established “without immediate or quantifiable economic impact.” The AAO offers examples of certain endeavors related to “research, pure science, and the furtherance of human knowledge,” regardless of whether they are likely to provide economic benefits to the United States.

When determining the endeavor's “national importance,” Dhanasar requires that adjudicators consider its “potential prospective impact.” An endeavor may be nationally important “because it has national or even global implications within a particular field” (e.g., improved manufacturing processes or medical advances). The AAO explains that endeavors that focus on one geographic area of the United States may be found to have national importance. In this sense, the first prong is clearly distinguishable from the “national in scope” requirement from NYSDOT, which placed the emphasis on the geographic breadth of the endeavor. The AAO explained that an endeavor “that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area … may well be understood to have national importance.”

Prong Two

This prong focuses on whether the foreign national is “well positioned to advance the proposed endeavor.” In making a determination, adjudicators will consider the foreign national's:

Education;
Skills;
Knowledge and record of success in related or similar efforts;
A model or plan for future activities;
Any progress toward achieving the proposed endeavor; and
The interest of potential customers, users, investors, or other relevant entities or individuals.

However, the inquiry is not limited to the above points, and adjudicators may consider any other relevant factors related to the foreign national's ability and qualifications to advance the proposed endeavor.

Interestingly, the AAO does not require that petitioners demonstrate that the endeavors “are more likely than not to ultimately succeed.” Rather, the petitioner is only required to establish that the foreign national is “well positioned” to advance the endeavor. In phrasing it in this manner, the AAO recognizes that even well-planned endeavors may ultimately fail, and that the emphasis should be on the qualifications of the foreign national to make an endeavor potentially successful.

Prong Three

The final prong of the new framework requires the petitioner to establish that, on the balance, it would benefit the United States to grant the national interest waiver. The AAO noted that Congress left it up to the discretion of the Secretary of Homeland Security to determine whether the interest in the statutory job offer requirement may be outweighed by other factors deemed to be in the national interest.

In evaluating a petition under prong three, the AAO stated that the USCIS may evaluate factors such as:

Whether it would be impractical for the foreign national to secure a job offer or for the petitioner to obtain labor certification (in light of the nature of the foreign national's qualifications or the proposed endeavor);
Whether the United States would benefit from the foreign national's contributions even if other U.S. workers were available;
Whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process.

The AAO explained that the factors in each case must be taken together in order to determine whether, on the balance, it would be beneficial to the United States to waive the job offer requirement (and by effect, the labor certification requirement).

The AAO distinguished the third prong of its new framework from NYSDOT in that the new third prong does not require any comparison to U.S. workers in the petitioner's field. This makes the new framework more amenable to self-petitioners.

Conclusion

The Matter of Dhanasar replaces the NYSDOT test with a more clear analytical framework that promises to benefit both petitioners for and adjudicators of applications for EB2 national interest waivers. The AAO's decision discussed in detail many of the issues that petitioners and adjudicators had in navigating the NYSDOT test. The new framework removes certain terms that complicated the national interest waiver analysis, clarifies the benefits that an endeavor must have to merit a waiver, and modifies language from NYSDOT that suggested petitioners had to submit evidence similar to the evidence that would be required in a labor certification application.

Although the AAO did not expressly modify the NYSDOT test to accommodate those seeking national interest waivers to engage in self-employment, the new framework omits elements from the NYSDOT test that had prejudiced applications by self-petitioners. In an additional interesting point, the AAO specifically discusses entrepreneurship in the EB2 national interest waiver context, and it will be interesting to see how that language in conjunction with the new analytical framework is applied to specific cases.

Although the decision appears to have promise for many well-credentialed individuals seeking national interest waivers, it must be noted that it is a new decision and that it is supplanting a framework that was relied upon by adjudicators for over 18 years. It will bear watching how the new EB2 national interest waiver analytical framework is applied to a wide range of petitions.

Petitioners should consult with an experienced immigration attorney before seeking employment in the United States (whether on behalf of a beneficiary or in the self-petitioning context). Every case is unique, and our immigration laws provide a variety of avenues toward employment in both the nonimmigrant and immigrant contexts. An experienced immigration attorney will be able to review each case individually and determine the best immigration option available. In seeking an EB2 national interest waiver, an experienced immigration attorney will help a petitioner compile evidence both to satisfy the basic EB2 requirements and to satisfy each of the three prongs of the new national interest waiver analytical framework.

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EB2 visa