On December 27, 2016, the U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office issued a decision in the Matter of DHANASAR, which is the current controlling case law on the National Interest Waiver standard.
This means that in addition to meeting the advanced degree or exceptional ability criteria for the EB2 visa, the foreign national must also demonstrate the following evidence under the Dhanasar standard.
As stated in the decision, “USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and thus of a labor certification.”
FIRST CRITERIA: that the foreign national’s proposed endeavor has both substantial merit and national importance;
There is no specific field or job requirement for a national interest waiver, and the endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture health, and education.
Dhanasar stated, “In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.” An economic impact is favorable, but endeavors related to research or pure science and the furtherance of human knowledge may qualify.
SECOND CRITERIA: that the foreign national is well positioned to advance the proposed endeavor; and
The Dhanasar Court stated “to determine whether he or she is well positioned to advance the proposed endeavor, we consider 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; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.”
Although USCIS does not require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed, petitioners are required to establish, by a preponderance of the evidence, that they are “well positioned to advance the proposed endeavor.”
THIRD CRITERIA: that, on balance, it would be beneficial to the United States to waive the job offer and thus of a labor certification
Dhanasar clarifies, “[i]n performing this analysis, USCIS may evaluate factors such as: whether, 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; 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.”
The court goes on to state, “We emphasize that, in each case, the factor(s) considered must, taken together, indicate that 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 third prong differs from the prior standard in NYSDOT and is meant to apply to a greater variety of individuals, especially entrepreneurs and those who are self-employed.
The Burden is on You
In visa petition proceedings, it is the petitioner’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 (2012).
If the above information doesn’t make sense or seems a bit overwhelming, you should probably hire an attorney to assist you through the process.
Contact The Scott Law Firm
If you qualify for a national interest waiver, that means you are an expert in your field. Therefore, you should recognize the benefit of hiring an expert in the field of immigration law to help you obtain your EB2 NIW green card. Contact the immigration attorneys at The Scott Law Firm today online or at (225) 396-5262.