USCIS Issues New National Interest Waiver (NIW) Standard | Practical Law

USCIS Issues New National Interest Waiver (NIW) Standard | Practical Law

The Administrative Appeals Office (AAO) of US Citizenship and Immigration Services (USCIS) clarified and revised the standard for granting a national interest waiver (NIW) under Section 203(b)(2)(i) of the Immigration and Nationality Act (INA).

USCIS Issues New National Interest Waiver (NIW) Standard

Practical Law Legal Update w-005-2140 (Approx. 5 pages)

USCIS Issues New National Interest Waiver (NIW) Standard

by Practical Law Labor & Employment
Published on 04 Jan 2017 • USA (National/Federal)
The Administrative Appeals Office (AAO) of US Citizenship and Immigration Services (USCIS) clarified and revised the standard for granting a national interest waiver (NIW) under Section 203(b)(2)(i) of the Immigration and Nationality Act (INA).
On December 27, 2016, in Matter of Dhanasar, the Administrative Appeals Office (AAO) of US Citizenship and Immigration Services (USCIS) clarified and revised the standard for granting a national interest waiver (NIW) of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification. The AAO held that a foreign worker is eligible for a national interest waiver under Section 203(b)(2)(i) of the Immigration and Nationality Act (INA) if the foreign worker demonstrates that:
  • His proposed endeavor has:
    • substantial merit; and
    • national importance.
  • He is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the US to waive the requirements of a job offer and, therefore, of a labor certification.
The AAO specified that this new test should be judged under a preponderance of the evidence standard, requiring a showing that the foreign worker more likely than not satisfies the requirements.
The AAO's decision vacates the existing standard from a 1998 case, Matter of New York State Dep't of Transp. (NYSDOT). The AAO concluded that NYSDOT did not provide sufficient clarity and flexibility for USCIS in evaluating petitions filed by petitioning employers as well as by self-petitioning foreign workers.
(26 I&N Dec. 884 (AAO 2016).)

Background

The petitioner, an aerospace engineering researcher and educator, filed an immigrant visa petition seeking EB-2 classification as a professional with an advanced degree. He also sought an NIW of the job offer.
A USCIS service center director denied the petition, applying the framework adopted by the AAO in NYSDOT. The director determined that although the petitioner qualified for the classification as a member of the professions, granting a national interest waiver would not be in the national interest of the US.
The petitioner appealed to the AAO.

Outcome

The AAO:
  • Sustained the appeal and approved the petition.
  • Vacated the existing framework adopted by the Immigration and Naturalization Service in NYSDOT for evaluating whether a foreign worker qualifies for an NIW.
  • Held that USCIS may use its discretion and approve an NIW under Section 203(b)(2)(A) of the INA if the foreign worker demonstrates that:
    • his proposed endeavor has both substantial merit and national importance;
    • he is well positioned to advance the proposed endeavor; and
    • on balance, it would be beneficial to the US to waive the requirements of a job offer and, therefore, of a labor certification.
The AAO noted that:
  • Immigrant visas are available to qualified immigrants who:
    • are "members of the professions holding advanced degrees" or have "exceptional abilities in the sciences, arts or business" that will "substantially benefit" the US economy; and
    • are sought by a US employer for "their services in the sciences, arts, professions or business…."
    (INA § 203(b)(2)(A) (8 U.S.C § 1153(b)(2)(A)).)
  • To hire a foreign national under this immigrant classification (known as EB-2), an employer must obtain a labor certification (known as PERM) from the US DOL showing that the DOL has determined that:
    • there are not sufficient workers who are able, willing, qualified, and available at the place where the foreign worker is to perform the work; and
    • employing the foreign worker will not adversely affect the wages and working conditions of similarly-employed US workers.
    (See INA § 212(a)(5)(A)(i) (8 U.S.C. §1182(a)(5)(A)(i)); Key Immigrant Visa Classification Chart and Practice Note, PERM Labor Certification: Overview.)
  • USCIS may use its discretion and approve an NIW to waive the PERM labor certification job offer requirement (the requirement that the foreign worker's services are sought by a US employer) (INA § 203(b)(2)(i) (8 U.S.C § 1153(b)(2)(i))).
  • To obtain an NIW, a petitioner must demonstrate that:
    • the beneficiary qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability; and
    • it would be in the national interest to waive the job offer requirement.
    (INA § 203(b)(2)(i) (8 U.S.C § 1153(b)(2)(i)).)
  • In NYSDOT, the legacy Immigration and Naturalization Service applied a framework to determining whether an NIW should be granted, holding that a petitioner must show that the:
    • area of employment is of "substantial intrinsic merit";
    • proposed benefit from the worker's endeavors will be "national in scope"; and
    • national interest would be adversely affected if a labor certification were required for the foreign national.
    (22 I&N Dec. 215, 217 (Acting Assoc. Comm'r 1998).)
The AAO concluded that it was time to reassess the NYSDOT framework because:
  • The term "intrinsic" in the first prong of the NYSDOT framework:
    • does not add much to the analysis; and
    • can lead to "unnecessary subjective evaluation."
  • The term "national in scope" has been construed too narrowly by focusing too heavily on the geographic nature of the benefit.
  • The third prong related to the national interest being adversely affected has caused confusion both for petitioners and adjudicators making the NIW determination. The NYSDOT decision stated the third prong in several different ways, leaving it unclear as to what the prong really requires. In addition, the third prong has been misinterpreted to require the petitioner to submit evidence that the NIW was intended to allow the petitioner not to have to submit. Finally, the third prong has not been useful for evaluating petitions made by self-employed individuals.
The AAO found that the petitioner in this case should be granted an NIW because:
  • He:
    • holds advanced degrees and therefore qualifies for a waiver under section 203(b)(2)(A); and
    • established the substantial merit and national importance of his proposed endeavor.
  • On balance, it would be beneficial to the US to waive the requirements of a job offer (and therefore of a labor certification) given that the petitioner holds three graduate degrees in areas tied to his endeavor and his research would implicate US national security interests and competitiveness that agencies like the The National Aeronautics and Space Administration (NASA) and the Department of Defense (DOD) have found "promising and useful."

Practical Implications

The AAO's decision in Matter of Dhanasar changes the framework for USCIS to apply when evaluating whether to grant an NIW of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification. Petitioners, whether employers or foreign workers, should now tailor their petitions to the new framework.