February 6, 2017

Introduction

Recently, the Department of Homeland Security ("DHS") issued a decision that could significantly improve the prospects for many people seeking immigration through employment.

On December 27, 2016, the DHS' Administrative Appeals Office ("AAO") vacated Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998) ("NYSDOT"), and changed the analytical framework for determining eligibility for national interest waivers under INA §203(b)(2)(B)(i).

In that decision, Matter of Dhahansar, 26 I&N Dec. 884 (AAO 2016) ("Dhahansar"), the AAO established a more flexible standard for determining whether the beneficiary of an employment-based immigration petition could obtain a waiver of the requirements for a job offer and labor certification.

Background.

The Immigration and Nationality Act ("INA") provides several eligibility categories for people to immigrate through employment, one of which is for individuals who hold either an advance degree or have "exceptional ability in the sciences, arts, or business." INA 203(b)(2).

Normally, people in this category must have a job offer and go through the arduous labor certification process to test the job market. However, under certain circumstances, those people can obtain a waiver of these two requirements.

This waiver, called the "National Interest Waiver," allows the DHS to waive these requirements if it determines "it to be in the national interest." INA 203(b)(2)(B)(i).

NYSDOT Standard

The "national interest" standard that has been used for many years was set forth in the NYSDOT administrative decision in 1998. That decision laid out a 3-prong set of criteria to determine if a particular waiver should be considered "in the national interest":

1. the area of employment must be in an area of "substantial intrinsic merit;"
2. the benefit offered by the granting of the waiver must be "national in scope;" and
3. the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required.

While on its face this standard seems clear enough, in the years since it was put forth, the standard has proven difficult for many petitioners to understand, and many adjudicators to apply on a consistent basis.

Dhahansar Decision

The Dhahansar decision significantly modified this framework. In that case, the self-petitioner, a "researcher and educator in the field of aeronautical engineering," Dhahansar at 884, had requested an NIW, which was denied by the USCIS. The self-petitioner appealed the decision to the AAO.

Instead of reviewing whether or not USCIS had applied NYSDOT correctly, the AAO found that the NYSDOT standard itself was "ripe for revision," and thereupon set forth to identify its weaknesses and try to produce a better standard. Id. at 888.

In looking at the first two prongs of the NYSDOT standard, the AAO found that the first prong, requiring "substantial intrinsic merit," should be modified to only require "substantial merit" (finding the word "intrinsic" to be unnecessary).   The AAO further determined that the second prong of NYSDOT, requiring a benefit that is "national in scope" focused too much on the geographic impact of the benefit rather than the inherent importance of the benefit. It therefore eliminated this criterion, and modified the criterion to require the field of endeavor to have "national importance." Id. at 887.

Then the AAO looked at the more problematic third prong of the NYSDOT decision, noting two main problems -- an ambiguity caused by multiple variant restatements and a susceptibility of being misinterpreted to require the very evidence that the NIW was specifically set up by Congress to forego; namely (1) harm to the national interest if NIW is not granted, and (2) evidence that the beneficiary will serve the national interest to a substantially greater degree than an American worker with the same minimum qualifications. The AAO noted that satisfying this part of the standard has been difficult for many qualified individuals, most notably self-employed individuals, and that "harm to national interest" is not required by statute, and unnecessarily narrows the standard. The AAO therefore modified this third prong, by splitting it upon into two separate criteria, to cover two main points -- the (1) likelihood of the beneficiary advancing the proposed endeavor, and (2) whether it would be beneficial to the US to waive the job offer and labor certification. Id.

To summarize, under the new framework in this decision, the AAO stated that 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 requirement of a job offer and thus of a labor certification.

Under the new framework, the first prong focuses on the specific endeavor, which may be in a wide range of areas including business, entrepreneurialism, science, technology, culture, health, or education. Evidence of economic impact is not required, so, for example, fields in the pure sciences with no clear economic impact, would not be excluded. Id. at 889.

The second prong shifts the focus to the individual, and asks whether he/she is well positioned to advance the endeavor. Under that prong, the focus is on the individual's education, skills, knowledge, and record of success; a model or plan for future activities; any progress towards achieving the proposed endeavor, and the interest in that endeavor by potential customers, users, investors, etc. A key point is that the petitioner need NOT show the endeavor is likely to succeed, just that the beneficiary is well-positioned to advance the endeavor. Id. at 890.    

The new third prong requires the petitioner to show that, on balance, it would be beneficial to waive the job offer and labor certification requirements. In other words, the adjudicator must weigh the benefit of granting the waiver against the benefit of protecting the American workforce through the labor certification program. The AAO outlined some factors to consider including (1) the impracticability for the beneficiary to secure a job offer or obtain labor certification (for example, in cases where the beneficiary has unique knowledge or skills not easily articulated in a labor certification application, or where the beneficiary is an entrepreneur), and (2) the urgency of the need for the benefit to the national interest. The AAO emphasized that this criterion does not require a showing of harm to the national interest or a comparison with US workers in the same field, unlike the standard in the NYSDOT decision; and moreover, explicitly stated that this new standard is intended to be more flexible than NYSDOT, and to apply to a greater variety of individuals. Id.

The AAO then proceeded to apply its new standard to the facts at hand. It first determined that the beneficiary's endeavor -- research into the design and development of propulsion systems for potential use in nano-satellites, missiles, and rockets -- met the standard contained in the first prong of substantial merit and national importance. Id. at 892.

The AAO then went on to find that the beneficiary was well-positioned to advance that endeavor, considering "[t]he petitioner's education, experience, and expertise in his field, the significance of his role in research projects, as well as the sustained interest of and funding from government entities such as NASA and AFR positioned him well to continue to advance his proposed endeavor of hypersonic technology research." Id.

Finally, the AAO applied the third prong to consider whether, on balance, granting the waiver would be beneficial to the US, and re-visited the beneficiary's credentials, the importance of the field and interest of the US government in that field, and evidence that this particular beneficiary's work was considered important and successful. The AAO found that the evidence showed, on balance, it would be more beneficial to the US to grant the waiver. Id. at 893.

The new standard does remain somewhat ambiguous in some respects, but that may be just an inherent feature of a discretion-based standard. At any rate, it clearly is meant to be more flexible and apply to a wider variety of people.  Specifically, evidence frequently required by USCIS under the NYSDOT standard, which would not be required under this standard, include:

1. evidence that the benefit be "national in scope" (just that the endeavor have "national importance";
2. evidence that the endeavor is likely to succeed (just that the beneficiary is well-positioned to advance the endeavor);    
3. evidence that the national interest would be harmed unless that waiver were granted; and
4. evidence comparing the beneficiary to minimally-qualified American workers.

It will be up to future decisions to clarify what ambiguity remains; but, nevertheless the Dhahansar decisions will certainly open the door for many more individuals whose knowledge, expertise and skills could benefit the US national interest. The decision is therefore, arguably, a step in the right direction.