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The National Interest Waiver: A Whole New Ballgame?
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The POSTDOCket

Volume 15, Issue 2 (February 2017)

Adam Frank and Brendan Delaney

 

The National Interest Waiver (NIW) is one of only two self-sponsored applications that postdoctoral scholars, scientists, researchers, and others use to obtain permanent residence in the United States. On December 28th, 2016, the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) issued a decision in Matter of Dhanasar, an aerospace engineer who self-petitioned for a NIW. This decision changed the landscape for NIW cases. It is first important to understand what the previous standard was.

 

Formerly, the AAO laid out a three-part test in the Matter of the New York State Department of Transportation (NYSDOT):

  1. Show that the area of employment is of “substantial intrinsic merit.”
  2. Show that any proposed benefit from the individual's endeavors would be "national in scope.”
  3. The petitioner must demonstrate that "the national interest would be adversely affected if a labor certification were required for the foreign national."

In deciding to look at this framework again, the AAO stated that they felt there has been confusion about how to demonstrate the above criteria. In addition, the AAO felt that this confusion has caused the USCIS to be too narrow in the cases it approved. More specifically, the AAO highlighted two main issues. First, in defining “national” scope, the AAO made it clear that this was NOT a geographic issue. Instead, it is an issue of national importance. Second, too much emphasis has been placed on requiring demonstration of harm to the national interest if the application is not approved and showing influence on the field. Because of this, the AAO decided to reformulate the above test.

 

New Test in Matter of Dhanasar

 

Under the new framework, and after eligibility for Employment Based Second Preference (EB-2) classification has been established, USCIS may grant a NIW if the petitioner demonstrates the following:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance.
  2. The foreign national is well positioned to advance the proposed endeavor.
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

If these three elements are satisfied, USCIS may approve the NIW as a matter of discretion.

 

Concerning the first prong, the AAO states:

 

“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, we consider its potential prospective 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 we do not evaluate prospective impact solely in geographic terms. Instead, we 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 used NYSDOT, we seek to avoid 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.”

 

It is clear that many more people should be able to meet these standards. First, in terms of substantial merit, the AAO is removing any required proof about economic benefit and is willing to accept more intangible benefits. While we have used this in many cases, it is good to see it immortalized into an actual standard. Second, the AAO is specifically allowing local impacts that affect national priorities to be used in this regard. In other words, with such a big emphasis on the economy and especially on creating jobs, one can use the potential jobs created for a particular endeavor in one state to justify the national importance of the project. This is a major broadening of the criteria, which would allow scientists and postdocs who are pursuing alternative or non-traditional careers to provide a stronger case for this visa category.

 

The second prong is, perhaps, the most interesting. According to the AAO:

 

“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, 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.

“We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners 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, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.”

 

It seems that just saying you want to continue working in your field is not enough. While you may not need a job offer, you do need a plan to continue your work in your field (be it collaborations you are planning or something similar). Past successes can be used to ensure that you will be able to continue to succeed in your area of expertise. In this way, it is also very similar to what was already required under the old standard. It seems that the AAO is trying to open up that standard by saying that you do not have to show substantial success in the past, just a record of success, which is likely easier to show.

 

The third prong is very similar to what the AAO said in NYSDOT. However, it is also much broader. Under the old standard, you had to show that national interest would be adversely affected if you were not granted the waiver. The AAO felt this was too restrictive:

 

“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 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. 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.”

 

Under the old standard, you had to show why you would help the national interest to "a substantially higher degree" than an available U.S. worker. Under this new standard, you need to show that the United States would still benefit from your work (or, at least, this is a part of the test). Again, this new standard helps broaden the scope of the NIW and helps many people who may not have qualified previously to have a stronger argument for qualifying.

 

Overall, the AAO tried to open the NIW to people who it felt should qualify, but whom USCIS found not qualified under the old standard. While the intent of the AAO is clear, it remains to be seen how USCIS will interpret this new standard. We are hopeful that they will interpret it in the spirit in which it was annunciated, that is, liberally. We are also hopeful that this new standard will help scientists whose fields do not garner a large number of citations or who have moved to non-traditional jobs as well as scientific or biotech entrepreneurs. Lastly, please keep in mind that, even if you filed your NIW case prior to this ruling, this is now the rule that USCIS will apply in your case.

 

Adam Frank, Esq and Brendan Delaney, Esq are at the law firm of Leavy, Frank & Delaney, LLC, which specializes in immigration law. The firm is a longtime partner of the NPA. The firm conducts legal seminars for international postdocs on behalf of the NPA.

 

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