National Interest Waiver - Silver Immigration

National Interest Waiver

May 8, 2020 - by Melissa Subryan

The national interest waiver is a useful tool that can speed up the green card process.

Most employment-based permanent residence processes require the employer to sponsor the foreign national through a test of the U.S. labor market and a showing that the foreign national is not taking a job away from a U.S. worker. This is done by obtaining a labor certification. It can be a long process. Usually, only after securing the labor certification may the employer file the immigrant petition.

However, there are ways to skip the labor certification process altogether. The petitioner can obtain a waiver of the labor certification requirement for individuals who qualify for the employment-based, second preference category and whose services in the sciences, arts professions, or businesses are deemed to be in the national interest. The national interest waiver became part of the Immigration and Nationality Act with passage of the Immigration Act of 1990.

Matter of DHANASAR set out the current framework for determining eligibility of a national interest waiver. In that case, the self-petitioner was a researcher and educator in the field of aerospace engineering. The petitioner filed an immigrant visa petition as a member of the professions holding an advanced degree and sought a national interest waiver of the job offer and labor certification requirements.

The Secretary of Homeland Security can waive the labor certification requirement if the petitioner shows that the beneficiary qualifies as a member of the professions holding an advanced degree (or as an individual of exceptional ability) and that it would be in the national interest to waive the requirement. In 1998, Matter of New York State Dep’t of Transp. (“NYSDOT”) established the framework for evaluating national interest waiver petitions. But the framework was flawed. It was confusing and led to inconsistent decisions. As such, in Matter of DHANASAR, the Administrative Appeals Office (“AAO”) took the opportunity to overrule NYSDOT and redesign the analysis.

Ultimately, the new rule looks like this. USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she 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 labor certification requirements. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

The framework is further explained by the AAO to provide additional guidance in the analysis. Regarding the first prong, merit can be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Furthermore, merit does not require a showing of immediate economic impact. The second part of the first prong clears up an issue that previously plagued countless petitions. In determining whether the proposed endeavor has national importance, adjudicators will consider its potential prospective impact and will not focus solely on geographic terms. The foreign national’s work can be of national interest even if the work is focused on one geographical area in the U.S.

Moving to the second prong. To determine whether a foreign national is well positioned to advance the proposed endeavor, adjudicators will 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. The key to this prong is that the petitioner does not need to show that the endeavor is more likely than not to succeed. That would be a near impossible task.

The last step is to weigh protecting the domestic labor supply against other relevant factors. In this determination, USCIS may consider 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 foregoing the labor certification process.

This last prong does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.

So, what is the real impact of DHANASAR? Well, it provides flexibility and clarity to the national interest waiver process. It expands eligibility for national interest waivers and makes them more accessible to entrepreneurs. However, USCIS still holds its discretionary power in these matters and therefore, there remains a subjective element to the analysis. All that being said, national interest waivers are a useful tool for green card applicants. Prospective immigrants should be aware that currently there is a temporary green card ban in effect.