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In the National Interest – National Interest Waiver

We are tracking the development of the national interest waiver law since the seminal decision, Matter of Dhanasar.

  1. Introduction

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.

  1. 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:

Arguments that work

National Importance

  • Arguments that a research endeavor is national because it has been disseminated through conferences, publications, and presentations. Don’t forget to include evidence of dissemination;
  • An endeavor may be of national importance if it involves a large employer, which is an industry leader and sets policies for the industry;
  • Letters and information that the endeavor will affect safety, policies, welfare on a national scope;
  • Research in the subject of the endeavor demonstrating national scope of research or work.
  • Letters and information that show potential benefit of the endeavor that has broader implications, as the result from the work is disseminated to others in the field through publication in educational journals and books.
  • Identify the urgency for the United States, and show how the alien’s endeavor will assist in solving the urgency.

Well positioned

  • Educational credentials are important. Include all diplomas, certificates, membership in national policy-making organizations;
  • The evidence must demonstrate some success or progress in the endeavor, and should not be only hypothetical. Include evidence of some achievements, rewards, grants;
  • Interest from third parties. The evidence must include correspondence, contracts, emails, etc., from vendors, government agencies, investors, or other peers, clients, or users showing interest in the proposed endeavor;
  • Include proof that independent researchers and scholars have cited to or discussed the published work; Document that the researchers and scholars are influential and independent researchers and scholars (include their CVs, BioSketch, select article list)
  • If an independent researcher has cited to or discussed the alien’s work, include a copy of each article that cited to or discussed the alien’s work. Especially persuasive would be an article that discusses the alien’s work within the body of the article itself, and not just citing to it in a footnote.  However, frequent cites to the alien’s work throughout such article can also serve as evidence of publication about the alien’s work,
  • Include evidence that the proposed endeavor has influenced others and that the research has served as impetus in the field (for example, it has caused a whole new field to spin off, or a university to teach a new class, or an industry to adopt a new method).
  • Evidence that the endeavor has garnered discussion in the broader academic community (for example, publications discussing the petitioner’s endeavor);
  • Evidence that methods have been implemented in the industry, academia, or government;
  • Evidence that the research has been used in the field by other professionals, or has generated substantial positive discourse in the broader academic community (for example, evidence that a book is used in a university course, or a database that is used for reference);
  • Ensure that expert letters are specific, detailed, and discuss the merits of the endeavor, the influence on their own work, and the interest of the community of peers. Don’t submit expert letters that discuss the character of the person instead of the endeavor itself.
  • If the endeavor is research-related, include evidence that the research has been published, preferably in a peer reviewed publications; Don’t forget to show the circulation, distribution, and the impact factor of the publication;

Arguments and evidence that don’t work:

  • Argument that a proposed teaching endeavor is national, usually does not work. Teaching is a local activity, limited to a classroom or a school.  However, a teacher who is a member of a national body and is responsible for policy decisions may argue that a certain teaching endeavor promoting new teaching methods may be of national importance.
  • Do not submit I-140 prior to gathering all evidence; USCIS will disregard evidence of publications, presentations, conferences, and others, that happened after the I-140 was filed;
  • Don’t argue that there are not U.S. workers to do the job because this argument undermines the claim that it would be impractical to obtain a labor certification. The request for a waiver must explain why the availability of U.S. workers is irrelevant in view of the very important proposed endeavor, the positioning of the alien, and the need of the United States.
  • Don’t state that the petitioner has “unique knowledge” or “skills” that cannot be “easily articulated in a labor certification” without actually explaining why it cannot be articulated in a labor certification. This is not a winning argument.
  • Don’t submit reports of downloads unless the work has been downloaded many times. Evidence that research has been downloaded or viewed 5-6 times isn’t evidence of influence.
  • Don’t submit invoices that a published book was purchased five times. This undermines the argument that the book is influential.
  • Saying that something is “urgent” doesn’t make it urgent without probative evidence that it is urgent. Imagine, for example that the person is working on identifying ways to destroy the Zika virus vs. teaching methods.

Endnotes

[i] 8 U.S.C. §1153(2)(West 2017)

[ii] Or equally qualified in case of “members of the teaching profession,” or “has exceptional ability in sciences or arts.” 8 U.S.C. §1182(a)(5)(A)(ii).

[iii] 8 U.S.C. §1182(a)(5)(A)(i).

[iv] 8 U.S.C. §1153(2)(i)(West 2017).  Physicians who agree to work a certain amount of time in medically underserved area or VA are presume