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 →