The New Standards for National Interest Waiver

USCIS has adopted new, better standards for obtaining green cards for people in the sciences, arts, professions, or business. The case in which these standards were announced and subsequently adopted as a binding precedent is The Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

What is National Interest Waiver?

Under the law, Section 203(b)(2)(A) of the Immigration and Nationality Act, immigrant visas (“green cards”) are 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."

National Interest Waiver (”NIW”), is a method of obtaining a green card under Employment-Based Category 2 (EB-2).  NIW does not require you to have an employer or an employment offer in the USA.  You can also apply for an NIW concurrently with existing family or employment based green card applications you have.  For instance, you could apply for NIW even though you have an EB-1, EB-2, EB-3 application in process.

Benefits of National Interest Waiver

The National Interest Waiver (“NIW”) category of green card:

1. Can be much quicker than a routine green card process;

2. Does not require a job or job offer in the USA; and

3. Permits a self-application by an individual, rather than having to go through a US employer.

The New Standards

In December 2016, Administrative Appeals Office, an appellate body within the USCIS, declared new, revised  standards for NIW that make the law much clearer.  These have been adopted by the USCIS as binding.

Determining National Interest - the three prongs

Under the new standards, an applicant for the National Interest Waiver must demonstrate that:

1. The proposed work they will do (or are doing) has both substantial merit and national importance for the USA;

2. The applicant is well positioned to advance the proposed endeavor; and

3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements (that are meant to protect the US workers through advertising and recruiting first for US workers).

Do note, the NIW application (also known as, “petition”) can be filed by an individual themselves or by a US employer on their behalf.

First prong: substantial merit and  national importance

The first prong,  substantial merit and national importance, focuses on the specific endeavor  that the foreign national  proposes to undertake. The endeavor's  merit may be demonstrated in a range of areas such as:

• Arts

• Business

• Entrepreneurialism

• Science

• Technology

• Culture

• Health

• Education

• And many, many more.

Evidence that the endeavor  has the potential to create a significant economic impact may be favorable but is not required, as an endeavor's  merit may be established without immediate or quantifiable economic impact. For example, endeavors  related to research, pure science, and the furtherance of human knowledge may qualify,  whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

In determining whether the proposed endeavor  has national importance, USCIS will consider its potential prospective (future) impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But USCIS will not evaluate prospective impact solely in geographic terms. Instead, USCIS will  look for broader implications.  Even ventures and undertakings that have as their focus one geographic  area of the United States may properly be considered to have national importance. In modifying this prong  to assess "national  importance" rather than "national in scope" as interpreted under the old law, USCIS has removed overemphasis on the geographic  breadth of the endeavor.  An endeavor  that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

The second prong: applicant is well positioned

The second prong  shifts the focus from the proposed endeavor  to the foreign national.  To determine whether he or she is well positioned to advance the proposed endeavor,  USCIS will consider factors including, but not limited to:

• The applicant'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;

• The interest of potential customers, users, investors, or other relevant entities or individuals; and

• Economic impact.

USCIS has recognized that forecasting feasibility or future success may present difficult challenges to applicants and for the USCIS officers, and that many innovations and entrepreneurial endeavors  may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.USCIS will  therefore NOT require applicants to demonstrate that their endeavors  are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest  waiver, applicants must establish, by a preponderance  of the evidence, that they are well positioned to advance the proposed endeavor. In footnote 66 of the Dhanasar case, USCIS noted further “... our adjudication experience in the years since NYSDOT has revealed that there are some talented individuals for whom past achievements are not necessarily the best or only predictor of future success.” So, the possibility of future success will not be made too difficult to prove, as long as it appears more likely than not that the efforts will succeed.

The third prong: balance

The third prong  requires the applicant to demonstrate 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.  On the one hand, Congress clearly sought to further the national interest  by requiring job offers and labor certifications  to protect the domestic labor supply. On the other hand, by creating the national interest  waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest.   The laws entrusted USCIS to balance these interests within the context of individual national interest  waiver adjudications.

In 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 applicant 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.

USCIS has emphasized 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 new prong,  unlike the third prong  of old standards (NYSDOT case), does NOT  require a showing of harm to the national interest or a comparison against U.S. workers in the applicant's field. As explained below, NYSDOT's third prong  was especially problematic for certain applicants, such as entrepreneurs and self-employed  individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.

Additional Requirements

Note that National Interest Waiver is available only to:

1. Persons working in the arts (every branch of art - music, dance, drama, etc.);

2. Persons working in the Sciences; or

3. Persons working in business

Who possess exceptional ability;

OR

4. Professionals (jobs that require a specific degree)

Who possess advanced degrees.

Thus, persons working in arts, sciences or business must prove exceptional ability.  Professionals must prove that they hold an advanced degree.

Defining “Exceptional Ability”

The term “exceptional ability” requires evidence beyond showing the individual's expertise  in a particular field. The regulations define "exceptional  ability" as "a degree of expertise  significantly above that ordinarily encountered" in a given area of endeavor.  By statute, individuals of exceptional  ability are generally subject to the job offer/ labor certification  requirement; they are not exempt by virtue of their exceptional  ability. Therefore, whether a given applicant seeks classification  as an individual of exceptional  ability, or as a member of the professions  holding an advanced degree,  that individual cannot qualify  for a waiver just by demonstrating a degree of expertise  significantly above that ordinarily encountered in his field of expertise.

Defining “Advanced Degree”

The usual definition employed by the USCIS is that an advanced degree is a degree above the Bachelor’s degree.  Some degrees, such as a Bachelor’s degree in law are considered advanced degrees because a Bachelor’s degree is a prerequisite.

How Does this Help in Obtaining a Green Card?

The National Interest Waiver allows USCIS to transcend the normal green card process of labor certification (also known as the the “PERM” process), which requires first to attempt recruitment of US workers.

Under the labor certification process, before hiring a foreign national,  an employer must first obtain a permanent labor certification  from the United States Department of Labor ("DOL"). A labor certification  demonstrates that DOL has determined that there are not sufficient workers who are able, willing, qualified, and available at the place where the alien  is to perform such skilled or unskilled labor, and the employment of such alien  will not adversely affect the wages and working conditions of workers in the United States similarly employed. In its labor certification  application, the employer must list the position's job requirements consistent with what is normally required for the occupation. Moreover, the job requirements described on the labor certification  application must represent the actual minimum requirements for the job opportunity. That is, the employer may not tailor the position requirements to the foreign worker's qualifications;  it may only list the position's minimum requirements, regardless of the foreign worker's additional skills  that go beyond what is normally required for the occupation. The employer must then test the labor market through several advertisements to determine if able, willing, or qualified U.S. workers are available with the advertised minimum qualifications.  If such U.S. workers are found, the employer may not hire the foreign worker for the position, even if the foreign worker clearly has more skills  (beyond the advertised qualifications) . If the employer does not identify such U.S. workers and DOL determines that those workers are indeed unavailable, DOL will certify the labor certification.  After securing the DOL-approved labor certification,  the employer may then file a petition with DHS requesting the immigrant   classification.

Under the law, subject to National Interest Waiver standards, USCIS may, when  deems it to be in the national interest, waive  the labor certification requirement for an applicant in the sciences, arts, professions,  or business.

What Has Changed - Evolving from the Old Standards

Under the old standards (announced in the NY State Department of Transportation case - NYSDOT), an NIW applicant must demonstrate that:

1. The area of employment is of "substantial intrinsic merit;”

2. Any proposed benefit from the individual's endeavors  will be "national in scope;" and

3. The US national interest  would be adversely affected  if the normal process of obtaining a labor certification  were to be required.

The term "intrinsic" was eliminated for being vague and unnecessary.  The term "national in scope" led to many denials because it  focused primarily on the geographic  impact of the benefit. The government now thinks that certain locally or regionally can also be of national importance.  So, the focus should be on evaluation of the nature of the benefit, not on geographic location.

The most problematic prong of the old analysis was the requirement that national interest would be adversely affected if a labor certification were required.

Old standards contained ambiguous interpretations of “adverse effect on national interest”

This prong  is interpreted in several different ways within NYSDOT case itself by requiring an applicant to demonstrate that:

1. The national interest  would be adversely affected  if a labor certification  were required.

2. The individual presents a national benefit so great as to outweigh the national interest  inherent in the labor certification  process.

3. The individual will serve the national interest  to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

4. The applicant's  past record justifies projections of future benefit to the national interest. USCIS used to seek a past history of demonstrable achievement with some degree of influence on the field as a whole.

Old NIW standards were contrary to the law and practice

The third prong  of the old standards could be and was often misinterpreted to require the applicant to submit, and the USCIS to evaluate, evidence relevant to the very labor market test that the waiver was intended to forego. The first interpretation of prong  three, that the national interest  would be adversely affected  if a labor certification  were required, implies that applicants should submit evidence of harm to the national interest.  The third interpretation, that the individual will serve the national interest  to a substantially greater degree than would an available U.S. worker having the same minimum qualifications,  suggests that the applicants should submit evidence comparing foreign nationals to unidentified U.S. workers. These concepts were highly problematic and contrary to the law.

Further, there are many occupations in which individuals are essentially self-employed,  and thus would have no U.S. employer to apply for a labor certification.  These occupations could never meet the old, required test.  Additionally, the concept of harm-to-national-interest was not required by the regulations or the statute, and unnecessarily narrowed the broad discretionary authority of the USCIS to grant a waiver. The new standards were long overdue and certainly provide a much better environment for individuals who can substantially enhance the US national interest.

FAQs

Q.  If I may verify the processing times involved in NIW. Since it falls under EB2 category, I am assuming it may be a long time before I can get my EAD card and be able to change employers. Also, I want to confirm if there could be issues if I change employers during the process - If so, I'd prefer to change my current employer before starting with it.

 A. You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: http://www.immigration.com/visa-bulletin under employment-based category 2.

Q.  Rajiv Jee, Any thoughts on how will the USCIS evaluate NIW applications that were received on or just before the date that this precedent was issued? Will they be using the old NYSDOT prongs or Dhanasar standards? UPS delivery date for my petition is 12/27.

A. My guess would be, USCIS will apply the new Dhanasar standards to pending National Interest Waiver applications. Even if they don't, you can always refile or file an MTR. There is no limit on how many times you may file an NIW.

Q. H4 EAD and NIW GC EAD
Can a person with H4 EAD, a bachelor degree in Comp Engg and Master Degree in MBA, start a business and is eligible to self-file for GC in EB 2 and use NIW?

A. Varun ji, it is too early to conclude whether or not ordinary entrepreneurship would make you eligible for a National INterest Waiver. But, I doubt it. Unless you had an extraordinary business plan or invention/idea, I don't think NIW is likely to be a good fit.

Q. NIW with Bachelors Degree
I see the NIW is tied to EB2 category and it requires an Advanced Degree to be considered EB2. What is the definition of Advanced Degree? (Masters ???) Can someone with Bachelors Degree with extensive work experience (10+ Years ) be considered for EB2 (NIW)?

A. See my Blog entry. It defines advanced degree. I do not think we can substitute experience for degree in this context.

Q. NIW on Entrepreneurship
If someone applies for NIW on Entrepreneurship route, what should be the status of the business venture? Should we have Business plan, Registered Company, Funded, Revenue, Employees?
As a person on H1B cannot start and run a business, he wouldn't be able to show any real product or revenue.
Please advise the best route to navigate this.

A. I think you will need a very detailed business plan and imminent funding at the very least.