New NIW Framework Provides Greater Flexibility for Applicants

On December 27, 2016, the Department of Homeland Security (DHS) designated the USCIS Administrative Appeals Office’s (AAO) decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) as precedential. This precedent decision vacates the 1998 decision, Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) (“NYSDOT”) and provides a more flexible framework for national interest waiver petitions.As a precedent decision, Matter of Dhanasar is binding on all DHS officers in the administration of the Immigration and Nationality Act and serves as a standard for future proceedings involving the same issues. See 8 CFR 103.3(c).

This landmark decision effectively replaces the three-pronged test set forth by NYSDOT with a new three-pronged framework for adjudicating national interest waiver (NIW) petitions. This new framework is meant to “provide greater clarity, apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”  Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

Under this new NIW framework, the applicant must establish that:

1. the applicant’s proposed endeavor has both substantial merit and national importance;
2. the applicant 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. at 889.

1. Substantial Merit and National Importance

On analysis, the AAO decision focuses on the applicant’s specific endeavor instead of the field as a whole, broadening the range of endeavors to business, entrepreneurialism, science, technology, culture, health, or education. Evidence that establishes the potential of the endeavor to create a significant and immediate economic impact to the U.S. may be considered favorable by USCIS, but this is not required. Instead, the applicant must show that his or her proposed endeavor has both substantial merit and national importance.

To determine national importance, the applicant must show the potential prospective impact of his or her specific endeavor on the United States. In evaluating this, USCIS breaks away from the traditional framework by not limiting the prospective impact to its geographical scope. Instead, USCIS takes into considerations the broader implications and national importance of the applicant’s endeavor. In modifying this prong to focus on the “national importance” of the endeavor, instead of “national in scope”, USCIS seeks to ‘avoid over emphasis on the geographic breadth of the endeavor and provide a broader scope for the national interest waiver. For instance, an endeavor that has the significant potential to employ U.S. workers, particularly in an underemployed area, may be shown to have national importance even though it is not national in scope. Id. at 890.

1. Well Positioned to Advance the Proposed Endeavor

The second prong requires the applicant to possess the capability to advance the proposed endeavor. In determining this, USCIS considers factors including, but not limited to: 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 towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals to be served by the endeavor. Evidence that the endeavors will ultimately succeed is not required.

As evidence of the applicant’s ability to advance the proposed endeavor, USCIS places great weight on funding from the U.S. government and/or private entities. In the AAO’s recent decision, the sustained interest of, and funding from, government entities provide concrete evidence that the applicant is well positioned to advance his or her proposed endeavor. Additionally, USCIS makes clear that any significant, continuous funding would be probative in demonstrating the applicant’s position to advance his or her proposed endeavor. Id.

III. Balance Test to Show National Interest

The third prong requires the applicant to demonstrate that, in this instance, it would be beneficial to the United States to waive the requirements of a permanent job offer and thus of a labor certification. Although Congress seeks to protect the domestic labor supply by requiring job offers and labor certifications for foreign workers, Congress also recognizes that there are instances where the benefits of a labor certification process are outweighed by other factors that are of the national interest – the balance test. Factors that are considered by USCIS include:

• whether, in light of the nature of the applicant’s qualifications or proposed endeavor, it would be impractical either for the applicant to secure a job offer or for the applicant to obtain a labor certification;
• whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the applicant’s contributions; and
• whether the national interest in the applicant’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

This balancing test is especially favorable to entrepreneurs who can demonstrate, that based on their history of success in related or similar efforts, their proposed entrepreneurial endeavor will benefit the United States. Despite its promising benefits, the ‘thinness’ of this third prong may end up being problematic for adjudication. In this prong, USCIS’ analysis repeats factors found in the first two prongs of the new framework, including the applicant’s experience, use of grant funding, and the significant potential implications for U.S. national security. However, aside from these repeat factors, the AAO decision provides very little guidance on just how this balancing test should work.

Overall, the new standard for NIW petitions appears to be lower and provides greater flexibility for entrepreneurs and self-employed individuals who are seeking a National Interest Waiver. By broadening the scope of the National Interest Waiver and focusing on the applicant’s specific proposed endeavor, USCIS opens the opportunity for a greater variety of individuals to apply for the National Interest Waiver Application.

With years of experience and a proven record of success, the immigration team at Universal Law Group is well-equipped to handle your NIW application. Please contact our office for a free evaluation.

 

Author Biography:

Daphne Wang Carman is a Senior Associate Attorney at Universal Law Group Licensed to practice law in the State of Texas, her practice focuses on all aspects of Immigration Law. Daphne obtained her B.A. in Government from the University of Texas at Austin and her J.D. from the University of Houston Law Center.