Immigration

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. Continue reading →

After the United States Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675, 2695-96, 186 L. Ed. 2d 808 (2013), holding that the Defense of Marriage Act’s definition of marriage was unconstitutional and a deprivation of liberty interest protected by the Fifth Amendment of the U.S. Constitution, the USCIS began processing immigrant petitions for same sex spouses. On July 1, 2015, the then Secretary of Homeland Security Janet Napolitano stated “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

On June 26, 2015, it will be two years since the landmark decision of the Supreme Court. Since that time, our law firm has processed numerous same sex petitions, all of which USCIS has approved in a swift and efficient manner. We are happy to report that petitions filed on behalf of same-sex spouse are being processed in the same manner as those filed on behalf of heterosexual spouses. Even though the processing is the same, we would like to share some unique challenges faced by same sex couples when preparing the evidence in support of a good faith marriage.

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Articles Tagged with Immigration

New Analytical Framework for National Interest Waiver Petitions

Same Sex Marriages and the Immigration Challenge – Two Years Later