We are tracking the development of the national interest waiver law since the seminal decision, Matter of Dhanasar.
Congress has made available a limited number of immigrant visas to skilled and unskilled foreign workers who want to take a job in the U.S. that local workers do not want or are unqualified to fill. Such foreign workers are not admissible to the United States, unless their potential employer offers them a job at a wage commensurate with the location, occupation, and the duties of the position, and obtains a labor certification from the Department of Labor that the job is in a shortage occupation.[i] Before the Department of Labor certifies the job as a shortage occupation for which there are not interested or qualified U.S. workers, the employer must prove that it had tested the U.S. market and that it could not find U.S. workers who are able, willing, qualified,[ii] or available to take the job. As part of the process, the employer must prove that the employment of foreign workers “will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[iii]
The labor certification process protects jobs for U.S. workers who have the same minimum qualifications, and is in the national interest. The Attorney General can waive the job offer and the labor certification requirement only in a case where the Attorney General finds that such employment is in the national interest of the United States and outweighs the national interest of protecting U.S. jobs for U.S. workers. The burden is on the foreign worker to show why granting such a waiver is more important for the national interest than protecting the jobs for U.S. workers who may be willing, able, qualified, and available.
The national interest waiver is only available to “members of the professions holding advanced degrees or their equivalent” or to “people 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 .” [iv] Because the labor certification process requires a job offer to the foreign worker, a foreign worker cannot self-petition, unless the worker seeks a national interest waiver. As a threshold matter before seeking a national interest waiver, the worker must show that he or she is a member of the professions holding advance degree or their equivalent, or has exceptional abilities. The petitioner then must make a separate showing that a waiver of the job offer requirement is in the national interest.
Not every person qualified to engage in a profession or a person of exceptional abilities is exempt from the requirement of a job offer based on national interest. Nor is the intent of Congress to grant national interest waiver based on the importance of a profession alone. In a recent decision, Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the Administrative Appeals Office outlined a new framework to apply in deciding whether a petitioner merits a national interest waiver. The AAO has decided several cases under the new framework. Review of these cases gives an idea of what the AAO considers as good, better, and best arguments.
This and following articles will review the application of the new framework to the facts of the recent decisions.
- The New Framework
Under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the petitioner must meet the following three prongs to establish that the request deserves a national interest waiver:
- Step 1, description of the endeavor. The foreign national’s proposed endeavor has both substantial merit and national importance. The petitioner can demonstrate merit “a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education” An endeavor has a “national importance….because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.” The impact is not confined in geographic terms but points to broader implications. Id. The agency considers the endeavor’s prospective impact.
- Step 2, qualifications of the alien. The foreign national is well positioned to advance the proposed endeavor. This prong “shifts the focus from the proposed endeavor to the foreign national.” The petitioner must establish that the alien is “well positioned to advance the proposed endeavor.” The agency 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; progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
- Step 3, needs of the United States. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. USCIS evaluates factors such as: whether, in light of the nature of the foreign national’s qualifications or the 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. In each case, the factors, taken together must indicate that on balance it would be beneficial to the United States to waive the requirements of the job offer and thus of labor certification.
If these three elements are satisfied, “USCIS may approve the national interest waiver as a matter of discretion. “ Id.
Application of the new framework
This article is first in a series reviewing the application of the new framework to the facts of recent AAO decisions. We will examine the endeavors, qualifications, and the evidence that each petitioner presented and whether or not the showing was sufficient to secure a national interest waiver. We will then try to identify what arguments and evidence work and what does not work. Currently, there have been 21 AAO decisions discussing Matter of Dhanasar. Based on review of these decisions, here is a general list of arguments that work and that do not. Cases mainly failed on the “national importance” part of the first prong, and the “well positioned” prong: Continue reading →