The National Interest Waiver (NIW) green card may be an option for members of the professions holding an advanced degree or its equivalent, or individuals with Exceptional Ability in the Sciences, Arts or Business who can show that their work is in the national interest.
On December 27, 2016, the Administrative Appeals Office (AAO) of USCIS set forth a new framework for assessment of the merits of a National Interest Waiver (NIW) petition.
The National Interest Waiver (NIW) is so-named because it allows qualified candidates to waive the usual requirements for individuals seeking a green card through US employment, namely, a PERM labor certification and a job offer from a US employer. National Interest Waiver (NIW) candidates must show that, if granted permanent US residence, they will “substantially and prospectively” benefit the national economy, cultural or educational interest or welfare of the US. It is not enough to show that the candidate’s skills that are in shortage in the US or generally, or that a candidate’s skills are in high demand (shortage would be a case for PERM Labor Certification rather than National Interest Waiver (NIW)).
In addition, at the final stage of the green card process, the candidate is likely to be asked to show that s/he will continue to work in the field of expertise presented in the petition.
Below we discuss the current standard a candidate must satisfy to succeed in a National Interest Waiver (NIW) petition, as well as the immediate past standard (set forth in Matter of NYSDOT in 1998), which the Administrative Appeals Office of USCIS vacated with their decision setting out the new NIW standard, Matter of Dhanasar.
The Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Service (USCIS) recently issued a precedent decision, Matter of Dhanasar (AAO 2016), vacating the previous standard for National Interest Waiver (NIW) petitions in Matter of NYS Department of Transportation (NYSDOT)(1998). Since 1998, the NYSDOT standard resulted in inconsistent adjudications and confusion. So, with Matter of Dhanasar, the AAO has attempted to provide a framework that will enable National Interest Waiver (NIW) adjudication with greater consistency, clarity and flexibility.
Matter of Dhanasar sets out the following new framework for adjudication of National Interest Waiver (NIW) petitions:
The first prong of the new framework focuses on the candidate’s proposed area of endeavor. An NIW candidate may demonstrate the merit of such area of endeavor in a range of fields, including business, entrepreneurship, science, technology, culture, health or education.
Evidence that the endeavor has the potential to create a significant economic impact may be favorable to a petition, but is not required, since a candidate may establish the area of endeavor’s merit without immediate or quantifiable economic impact. For example, endeavors related to research, pure science or the furtherance of human knowledge may qualify whether or not the potential achievements in those fields are likely to provide economic benefit to the US.
A determination of whether an area of endeavor has national importance requires an evaluation of its potential prospective impact. An area of endeavor may have national importance because is has national or global implications within a particular field, such as implications of improved manufacturing processes or medical advances. The AAO states, however, that USCIS should not evaluate prospective impact solely in geographical terms. Rather, they should look at broader implications. The AAO specifically states that endeavors that focus solely on one geographic area may by considered to have national importance. For example, an endeavor that has significant potential to employ US workers or has other substantial positive impact, particularly in an economically depressed area, would qualify.
With the second prong of the new NIW framework, AAO shifts the focus from the proposed endeavor to the foreign national. To determine whether s/he is well positioned to advance the proposed endeavor, USCIS should consider factors including, but not limited to:
Petitioners do not have to demonstrate that their endeavors are more likely than not to ultimately succeed. However, they must show by a preponderance of the evidence that they are well positioned to advance the proposed endeavor.
The third prong of the new National Interest Waiver (NIW) framework requires 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. In making this determination, USCIS may consider factors including:
The AAO emphasizes that each of the factors considered must, taken as a whole, indicate that on balance, it would be in the US’s benefit to waive the requirements of a job offer and thus of a labor certification. They also note that this third prong does not require a showing of harm to the national interest or a comparison against US workers in the petitioner’s field.
In addition to the above, a successful National Interest Waiver (NIW) green card candidate must either have an advanced degree, or must demonstrate exceptional ability (as defined in the regulations) in the field of endeavor to qualify for the EB2 category. (See below for definitions.)
The immediately previous standard (prior to December 2016) for the National Interest Waiver (NIW) was a 1998 court decision, New York State Department of Transportation (NYSDOT), which substantially changed the legal standard at that time and raised scrutiny of National Interest Waiver (NIW) green card petitions.
According to NYSDOT, a National Interest Waiver (NIW) candidate had to meet the following three tests:
For US immigration purposes, “advanced degree” is postgraduate study beyond a bachelor’s degree (at minimum, a master’s degree or its US equivalent). The “equivalent” of a US Masters degree is the foreign equivalent of a Bachelor’s degree, followed by at least 5 years of progressive experience in the specialty. No amount of experience may be substituted for the bachelor’s degree in establishing eligibility in this category. In addition, if beneficiary’s specialty customarily requires a doctoral degree, the candidate should possess such a degree.
In US immigration, “exceptional ability” is “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business,” and is denoted by the following regulatory factors. If an applicant meets at least 3 of these factors, s/he will qualify under this standard:
If the above criteria do not readily apply to the beneficiary’s occupation, the candidate may submit comparable evidence to establish eligibility.
Individuals with an advanced degree need not satisfy the Exceptional Ability standard.
Please note that we will accept a National Interest Waiver (NIW) green card case only if we feel it has a high chance of success after examining the prospective client’s credentials and subjecting them to an analysis of the regulations and the latest trends in adjudication of this case type.