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A Businessmen Fails to Meet Threshold Requirement for a National Interest Waiver

Our law firm often works with foreign national whose work is in the national interest of the United States.  The lawyers of  Zneimer & Zneimer are tracking decisions under the new NIW framework under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The framework imposes three prongs on petitioners who claim that they should be allowed to immigrate to the United States based on a proposed endeavor that would be in the national interest of the United States:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The most recent decision came on appeal from a denial from USCIS Texas Service Center in Matter of D-D-P (AAO May 25, 2017).  In Matter of D-D-P, an entrepreneur lost his bid to qualify for a national interest waiver before USCIS.  He appealed to the Administrative Appeals Office (“AAO”).

The AAO did not reach the merits of the entrepreneur’s claim that he is eligible for a national interest waiver and did not reach the three prongs of Matter of Dhanasar.  The businessman lost his case on a threshold matter because the AAO found that he was neither a member of the professions holding advance degree or their equivalent, nor that he had exceptional abilities.  Thus, although this AAO decision did not discuss the new framework, the decision is still an important reminder that there are threshold issues that foreign nationals must meet before they can make separate showing that a waiver of the job offer requirement is in the national interest. We outlined in more detail the requirements and the framework in our earlier blog.

Petitioner’s Claim:  In this case the alien argued that he was an individual of exceptional abilities in the business world.  In the initial filing, the alien stated that he was a “chief executive/entrepreneur” and that he intended to “use his broad experience as a successful entrepreneur to create business opportunities for himself and US workers. He will transfer his wealth of knowledge of developing business in the harshest of climates to the US environment.”   He claimed that he planned to “replicate his success in Nigeria to US markets with positive effect on employment and renewable energy systems.”  The petitioner claimed that he “has created five extremely successful businesses in information and communication technology, renewable energy systems, online travel and reservation systems, turnaround innovation and business counseling.” He claimed that through these companies he had provided “nine billion” dollars of energy services to the “highest level of government and the private sector.”

Evidence: The foreign national initially stated that he had a Master’s Degree, but later explained that he was in Master’s degree program in business administration and has not yet attained the advance degree.  He submitted an ETA Form 9089 attesting that he was employed as “head of finance and administration” for a company, but the record did not show how this employment “garnered recognition for achievements and significant contributions to the industry.”  He also submitted corporate formation documents and copies of Nigerian government contracts, but no information how these companies related to him.  Most of the documents did not mention him.  The articles of association for one of the companies list him as a “director” but there was no evidence about how this role led to “recognition for achievement and contributions to the energy industry.”

Analysis.  The regulations enumerate six evidentiary criteria to meet the threshold requirement as an alien of exceptional abilities.  An individual claiming exceptional abilities, must meet at least three out of six requirements to qualify.  Only those petitioners who demonstrate “a degree of expertise significantly above that ordinarily encountered” are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2).  The six requirements are listed in the regulations as follows:

  1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability:
  5. Evidence of membership in professional associations; or
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

The AAO found that the petitioner has not met any of the criteria.  The initial petition included information that high school was his highest level of education.  When he appealed to the AAO, he indicated that he was enrolled in a Master’s degree program, but did not submit any evidence of undergraduate education.  He did not submit letters from prior employers, but only a job offer letter for a sales consultant position, which did not address his previous full-time experience in business.  He also did not provide a license, or evidence of high salary, membership in professional associations, or evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.  The AAO concluded that the petitioner failed to meet the threshold requirement and therefore did not consider the three prongs of Matter of Dhanasar.

Takeaway points.  It appears that this petitioner either did not have a lawyer or his lawyer did not understand the basic standards for a national interest waiver petition.   It is not clear whether or not he could have met the exceptional abilities requirements but with proper legal guidance, perhaps he could either have qualified or saved himself the aggravation and expenses of going through denials and appeals.  The record that USCIS and the AAO had before them was woefully inadequate.

If you would like to explore your immigration options contact an immigration attorney. Our office is well versed in filing National Interest Waivers and can give you a frank assessment on your ability to qualify for a specific category.


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