After almost two decades, the Administrative Appeals Office (AAO) revisited and revised the analytical framework USCIS will now use for determining eligibility for a National Interest Waiver (NIW), which allows certain highly qualified individuals to pursue Legal Permanent Resident status (a “green card”) without the need for employer sponsorship or an approved PERM labor certification application. USCIS has designated the decision as a “precedent decision,” meaning that it controls the adjudication of NIW cases going forward.
Congress created the NIW in the Immigration Act of 1990 (IMMACT 90) to allow individuals to avoid the labor certification process, and the need for employer sponsorship, if they could show that they were performing work that was beneficial to the United States as a whole. However, neither Congress nor legacy INS defined in either statute or regulation the term “national interest.” In 1998, the AAO set forth in the precedent decision Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), a framework for legacy INS to use to evaluate national interest waiver petitions. However, the NYSDOT analysis failed to provide clear, objective criteria for NIW eligibility. This has resulted in NIWs remaining largely underutilized by foreign nationals as a viable pathway to permanent residence, despite the fact that many potential NIW applicants substantially benefit U.S. national interests.
However, as a result of a decision issued today, the NIW process may be much more accessible as a path to a green card, particularly for entrepreneurs and researchers. In the precedent decision of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the AAO defined the criteria USCIS will now use for determining NIW eligibility. Specifically, a foreign national must demonstrate, by a preponderance of the evidence, that:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- He or she is well positioned to advance the proposed endeavor; and,
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
While adjudication trends within USCIS remain to be seen, the Dhanasar framework is a substantial improvement over NYSDOT, and the NIW process may well become a viable permanent residence option, particularly for entrepreneurs and researchers. If you have questions on whether you may qualify for a NIW, please contact SPS Immigration PLLC.