Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - Article 2: Application of New EB2 National Interest Waiver Framework

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 for 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].

In Matter of Dhanasar, the AAO held that a petitioner must demonstrate the following in order to qualify for an EB2 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. That it would be, on the balance, beneficial to the United States to waive the job offer and labor certification requirements for the petition.

In this article, we will examine how the new analytical framework in Dhanasar was applied to the facts of the instant case to find that the petitioner should be granted an EB2 national interest waiver. Before reading this article, please see our article discussing the new analytical framework [see article]. That article explains the new framework and the AAO's decision to replace the NYSDOT test, and it provides essential context for this article.

Overview: 26 I&N Dec. at 884

The petitioner, a researcher and educator in the field of aerospace engineering, filed an immigrant visa petition seeking EB2 classification under section 203(b)(2) of the Immigration and Nationality Act (INA) as a member of the professions holding an advanced degree. He proposed to engage in employment relating to aerospace engineering research and education. Because the petitioner did not have an outstanding job offer, he filed the immigrant visa petition on his own behalf and sought a national interest waiver of the job offer requirement for EB2 petitions (see section 203(b)(2)(A) of the INA).

The Director of the Texas Service Center (part of the USCIS) denied the petition under the then-controlling analytical framework established by the Matter of NYSDOT. In the Director's decision, he found that the petitioner qualified for EB2 classification but did not qualify for a national interest waiver under the Matter of NYSDOT. The petitioner appealed the decision to the AAO.

New Framework

Please see the relevant section of our full article to learn about the analytical framework that the AAO applied to the facts of the instant case [see section].

Analysis and Decision: 26 I&N Dec. 891-94

The AAO applied its new analytical framework to the instant case and found that the self-petitioner was eligible for a national interest waiver. We will now examine the facts of the case, the AAO's application of the new framework, and its reasoning in finding that the self-petitioner warranted the national interest waiver.

The petitioner proposed to engage in research and development relating to air and space propulsion systems, as well as to teach aerospace engineering at a U.S. college. The petitioner held two master of science degrees in mechanical engineering and applied physics, as well as a Ph.D. in engineering from a U.S. university. The Director of the Texas Service Center had found that the petitioner was qualified for EB2 classification by virtue of these advanced degrees and the AAO agreed with this determination. However, the director had found that the petitioner, who as a self-petitioner did not have a job offer, was ineligible for a national interest waiver under NYSDOT.

In reviewing the denial by the director of a national interest waiver, the AAO noted that “[t]he extensive record includes: reliable evidence of the petitioner's credentials; copies of his publications and other published materials that cite his work; evidence of his membership in professional associations; and documentation regarding his research and teaching activities.” Additionally, the petitioner had submitted several letters from experts in his field that described his research and attested to his expertise.

In the following subsections, we will examine how the Board concluded that the petitioner satisfied each prong of the new analytical framework and was entitled to a national interest waiver.

Prong One

The AAO explained that the petitioner demonstrated that he intended to continue research into the design and development of propulsion systems for military and civil technologies. The petitioner established that research in these areas enhances U.S. national security and defense. For these reasons, the AAO found that the proposed research had substantial merit “because it aims to advance scientific knowledge and further national security interests and U.S. competitiveness in the civil space sector.”

The AAO found that the petitioner's endeavor was of national importance. It cited to expert letters submitted by the petitioner that explained how the proposed research related to U.S. strategic interests. The petitioner also submitted media articles showing the interest of the U.S. Congress in the development of such technologies.

Prong Two

The AAO found that the petitioner was well positioned to advance the proposed endeavor. It noted that he not only possessed multiple degrees in relevant fields, but he also had extensive experience in researching and developing computational models that support the mission of the Department of Defense. To this effect, the petitioner had submitted expert letters describing the U.S. Government's interest and investment in his research. The petitioner also submitted documentation showing that he had already played a significant role in projects funded by grants from NASA and the Air Force Research Laboratories within the DOD.

Prong Three

Finally, the AAO determined that, on balance, it would be beneficial to the United States to waive the job offer requirement for the petitioner. The AAO found that, given the petitioner's considerable experience and expertise, the merit and importance of his research, and the fact that he had played a key role in research for NASA and the DOD, the “petitioner offered contributions of such value that, on balance, would benefit the United States even assuming that other qualified U.S. workers were available.”

Teaching

The petitioner also submitted letters “favorably attesting to his teaching abilities at the university level and evidence of his participation in mentorship programs for middle school students.” However, the AAO found that the petitioner did not merit a national interest waiver on the basis of his proposed teaching. Although the AAO noted that “STEM teaching has substantial merit in relation to U.S. educational interests,” it explained that the petitioner did not establish that his proposed activities in teaching would meet the “national importance” element of the first prong. Therefore, the AAO did not address the second and third prongs in relation to the petitioner's teaching activities.

Decision

The AAO found that the record demonstrated by a preponderance of the evidence that the petitioner satisfied all three prongs of the new framework. Accordingly, the AAO found that the petitioner established eligibility for and merited a national interest waiver as a matter of discretion. Therefore, the AAO sustained the petitioner's appeal and approved his petition.

Conclusion

The most important aspect of the Matter of Dhanasar is that the AAO created a new analytical framework for evaluating all applications for EB2 national interest waivers. However, the application of the new framework to the facts in the instant case should not be overlooked. In this case, the AAO found that the self-petitioner clearly established that his proposed endeavors in research satisfied all three prongs of the new framework because of the merits of the endeavors and because of his qualifications. In contrast, the AAO found that his proposed teaching work did not meet the first prong of the new framework. Therefore, had the petitioner sought a national interest waiver for his proposed teaching alone, he would have been found to not merit the waiver even having the same credentials.

If an individual is seeking to work in the United States or to employ other foreign nationals, he or she should consult with an experienced immigration attorney before beginning the petitioning process. An experienced immigration attorney will evaluate each case individually, and determine the best immigration option given the circumstances of each particular case. If it is determined that the petitioner should seek a national interest waiver, an experienced immigration attorney will be able to assist the petitioner in compiling the requisite evidence to satisfy each of the three prongs of the new analytical framework.

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EB2 visa