A New Test for “National Interest Waiver” Cases (Dec. 2016)

The “National Interest Waiver” is a test for foreign nationals who are applying for permanent residence based on their work in their field of expertise, to determine if they may be approved for permanent residence on their own, without a job offer from a U.S. employer.  

To qualify, the applicant, called a “self-petitioner,” must either be a “member of the professions holding an advanced degree” or an “alien of exceptional ability in the sciences, arts, or business.”   These are the baseline requirements for the “EB-2” category for permanent residence.  

If the self-petitioner can meet these baseline EB-2 requirements, then he or she may apply for permanent residence under the “National Interest Waiver,” by proving that it would be in the “national interest” of the United States to waive, or set aside, the usual requirements of (a) job offer and (b) testing of the U.S. job market (“labor certification”).

New “National Interest Waiver” requirements, under Matter of Dhanasar (December 2016)

On December 27, 2016, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) reversed USCIS’s long-standing, problematic policy (see NYSDOT discussion, below) and announced a new analytical framework, or test, for the National Interest Waiver.  Restating the test as set out in the AAO decision, called Matter of Dhanasar:

USCIS may grant a national interest waiver, if the petitioner demonstrates by a preponderance of the evidence [that is, that he or she more likely than not satisfies the requirements]:

  1. That the foreign national’s proposed endeavor has both substantial merit and national importance; and
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. 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.

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion [if the foreign national otherwise merits a favorable exercise of discretion].

Language in [brackets] has been added for clarification.  Boldface has been added for emphasis.

Matter of Dhanasar involved an application by a researcher and educator in the field of aerospace engineering at a state university in North Carolina.  He showed that he intended to continue research into the design and development of propulsion systems for potential used in military and civilian technologies, and that research in this area enhances the national security and defense by allowing the United States to maintain its advantage over other nations in the field of hypersonic flight.  

The AAO agreed that Mr. Dhanasar’s proposed endeavor: (1) has substantial merit and is of national importance; that (2) he is well-positioned to advance the proposed endeavor; and that, (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.

A history of the “National Interest Waiver,” and its evolution, follow.

The initial “National Interest Waiver” standards, prior to August 1998

Initially, after the “National Interest Waiver” was created by a 1990 amendment to the Immigration and Nationality Act, U.S. immigration authorities indicated that the following factors could be relevant to determine whether the admission of a foreign national would be sufficiently in the “national interest”:The alien’s admission will improve the U.S. economy; or

  • It will improve wages and working conditions of U.S. workers; or
  • It will improve educational or training programs for children and underqualified workers; or
  • It will improve health care in the U.S. or provide more affordable housing; or
  • It will improve the environment and lead to more productive use of the national resources; or
  • The alien’s admission is requested by an interested U.S. government agency.

The “National Interest Waiver” standards, under Matter of NYSDOT, until December 2016

In August 1998, USCIS, by decision of its Acting Associate Commissioner, announced a new test, in a decision denying a request for a National Interest Waiver.  This was a case filed by the New York State Department of Transportation (NYSDOT), on behalf of a civil engineer who had expertise in highway bridge construction.

The NYSDOT decision set out three positive factors which must be present in a favorable case:

  • The alien must seek to work in an area of substantial intrinsic merit, that is, a field whose national importance is immediately apparent.  The former NIW standard stated that the following are areas in which a national interest waiver is appropriate: improving the U.S. economy, education, health care, housing, and environment.
  • The alien’s work must produce a benefit which will be national in scope. The decision emphasized that an activity may have an overall benefit which is national in scope – that is, that it will felt throughout the United States – even though the activity is local or limited to a particular geographical area. Any harm to another region must be taken into account, as well.
  • He or she must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. This factor is consistent with pre-1998 rule-making, which required “a showing significantly above that necessary to prove prospective national benefit” which is required for exceptional ability cases.”

The 2016 decision, Matter of Dhanasar, discussed above, vacated Matter of NYSDOT.  It is no longer of any legal effect.  New applications, or self-petitions, for the “National Interest Waiver” will be determined according to the analytical framework of Matter of Dhanasar.