The Administrative Appeals Office (“AAO”) recently scrapped the “national interest waiver” test of In re N.Y. STATE Dep’t OF Transp., 22 I. & N. Dec. 215 (1998) and replaced it with a new one in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).
The AAO determined that the test USCIS has been following for the last 18 years was too subjective, and promised that the new framework “will provide greater clarity, apply more flexibility to circumstances… and better advance the purpose of the broadd discretionary waiver provisions to benefit the United States.” Id. at 888.
National Interest Waiver
To receive a national interest waiver, the petitioner must meet the statutory requirements in Section 203(b)(2) of the Immigration and Nationality Act. This Section states in relevant part:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. —
(A) In General. — Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or 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, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of Job Offer. — The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
Under Section A, the petitioner must establish that the alien is (i) either a “member of the professions holding advanced degrees or their equivalent” or (ii) has “exceptional ability” in one or more of the enumerated fields; and (iii) will “substantially benefit prospectively” the national economy, cultural or education interests, or welfare of the United States. Once the petitioner meets the threshold requirement of subsection A, the petitioner must demonstrate that forgoing the requirement for a job offer and labor certification (a test for availability of U.S. workers) can be “deemed to be in the national interest.”Id.
The Old Analytical Framework
The old test was born when the New York State Department of Transportation (NYSDOT) filed an immigrant petition on behalf of one of its civil engineers and asked for a national interest waiver, claiming that the engineer’s employment was in the national interest. In re N.Y. STATE Dep’t OF Transp., 22 I. & N. Dec. 215 (1998). The civil engineer held a Master of Science degree in Civil Engineering, and therefore qualified as a “member of the professions holding an advanced degree.” The immigration service, however, rejected NYSDOT claim that its engineer’s employment was in the national interest, and the employer appealed to the Administrative Appeals Office (“AAO”).
The AAO devised a test intending to have “the application of this test as flexible as possible”. Id. . Under the old test the adjudicators had to consider three (3) factors when evaluating a request for national interest waiver:
First, the petitioner had to show that “the alien seeks employment in an area of substantial intrinsic merit.” The NYSDOT’s civil engineer met this requirement because he was going to maintain bridges, and their importance was “ immediately apparent.” Id. .
Second, the petitioner had to show also that “the proposed benefit will be national in scope” and will not have adverse impact on “other regions.” The civil engineer’s work met that requirement because “[w]hile the alien’s employment may be limited to a particular geographic area, New York’s bridges and roads connect the state to the national transportation system” and “ proper maintenance of New York’s transportation infrastructure” did not have “an adverse impact on the interests of other regions.” Id. .
Third, the petitioner had to show that the national interest would be adversely affected if the petitioner had to test the labor market for US workers. This third prong was “specific to the alien.” The AAO gave several restatements of this prong, leaving room for subjectivity and confusion: (i) The petitioner “must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.” Id. (ii) The alien “seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.” Id. (iii) The petitioner “must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” Id. (iv) “[I]t clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. “ Id. .
NYSDOT and its engineer did not meet the third prong. Although the engineer had worked for NYSDOT for many years, had expertise in “prestressed concrete construction and design of post-tensioning and of curved bridges” that were more economical, and had experience “in detailed seismic analysis using state-of-the-art seismic analysis software, “ the AAO decided that the petition does not merit a national interest waiver, noting that “[t]he issue in this case is not whether proper bridge maintenance is in the national interest, but rather whether this particular beneficiary, to a greater extent than U.S. workers having the same minimum qualifications, plays a significant role in the preservation and construction of bridges.” Id.
Criticism of the Old Analytical Framework
The AAO changed the test in Matter of DHANASAR, 2016 BIA LEXIS 33, at *18-19, *26 (Dec. 27, 2016). In this case USCIS had denied a request for a national interest waiver of a scientist who worked in the field of “aerospace engineering,” and the scientist appealed. Mr. Dhanasar held “two master of science degrees, in mechanical engineering and in applied physics, as well as a Ph.D. in engineering.” His “graduate and postgraduate research has focused on hypersonic propulsion systems (systems involving propulsion at speeds of Mach 5 and above) and on computational fluid dynamics. He has developed a validated computational model of a high-speed air-breathing propulsion engine, as well as a novel numerical method for accurately calculating hypersonic air flow.” Id.
Reviewing Mr. Dhanasar’s case, the AAO decided that it was time for a reassessment of the three prongs of In re N.Y. STATE Dep’t OF Transp., 22 I. & N. Dec. 215 (1998). The AAO explained that “[w]hile the first prong has held up under adjudicative experience, the term “intrinsic” adds little to the analysis yet is susceptible to unnecessary subjective evaluation.” Matter of DHANASAR, 2016 BIA LEXIS 33, at *18-19, *26 (2016).
The second prong also had a problem because the adjudicators construed the term “national in scope” “too narrowly by focusing primarily on the geographic impact of the benefit” as some local or regional “endeavors” may be of “national importance despite being difficult to quantify with respect to geographic scope.” Id.
The AAO acknowledged that the third prong “has generated the greatest confusion for petitioners and adjudicators,” and identified several issues. First “this prong is explained in several different ways within NYSDOT itself, leaving the reader uncertain what ultimately is the relevant inquiry.” Id. . Moreover, the third prong “can be misinterpreted to require the petitioner to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego.” The prong “has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.” Id. . The AAO also noted that the concept “harm-to-national-interest is not required by, and unnecessarily narrows, the Secretary’s broad discretionary authority to grant a waiver when he ‘deems it to be in the national interest.’” Matter of DHANASAR, 2016 BIA LEXIS 33, at *18-19, *26
The New Analytical Framework
The AAO’s new test has three new prongs, which continue to leave room for subjectivity. Under the new test, the petitioner must show the following:
1. The foreign national’s proposed endeavor has both substantial merit and national importance.
- Merit may be demonstrated in “a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education” . Evidence that the endeavor “has the potential to create a significant economic impact may be favorable but is not required,” and its merit “may be established without immediate or quantifiable economic impact.” Id.
- National importance impacts the endeavor’s “potential prospective impact.” An endeavor may have “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. The AAO’s change of this prong to “national importance” from the old test’s “national in scope,” seeks to avoid “overemphasis on the geographic breadth of the endeavor.” An endeavor that has a “significant potential to employ U.S. workers” or that “has other substantial positive economic effects, particularly in an economically depressed area” may meet the “national importance” prong. Id.
2. The foreign national is well positioned to advance the proposed endeavor.
This prong “shifts the focus from the proposed endeavor to the foreign national.” This prong does not require the petitioner to show that the endeavors “are more likely than not to ultimately succeed” but the petitioner must establish that the alien is “well positioned to advance the proposed endeavor.” Id. . For this prong, the USCIS will consider factors including but not limited to:
- Education, skills, knowledge and record of success in related or similar efforts;
- Model or plan for future activities;
- Progress towards achieving the proposed endeavor;
- Interest of potential customers, users, investors, or other relevant entities or individuals.
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. This prong “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” . USCIS may consider factors in an aggregate:
- In light of the nature of the foreign national’s qualifications or 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;
- Even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions.
- The national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
If these three elements are satisfied, “USCIS may approve the national interest waiver as a matter of discretion. “ Id.
Application of the New Test
Application to Matter of Dhanasar:
The new test is an improvement over the old test and provides more guidance for petitioners to qualify for the EB-2 National Interest Waiver. It is especially helpful that the AAO clarified that “national in scope” does not focus on geography but on the national importance of the endeavor. Similarly, the elimination of the concept of “harm-to-national-interest” broadens the discretion of the adjudicator. This test should result in better adjudications of request for a national interest waiver.
Under the new test Mr. Dhanasar met the requirements and the AAO sustained his appeal. Id.
If you would like to explore your immigration options contact an immigration attorney. Our office is well versed in filing National Interest Waivers and will be following decisions under the new test.