On December 27, 2016, the Department of Homeland Security (DHS) designated the US Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) decision Matter of Dhanasar as a “precedent” decision binding all future USCIS adjudications. Matter of Dhanasar sets forth a new standard for qualification for a National Interest Waiver (NIW) Immigrant Visa Petition. This action served to vacate the prior precedent decision, Matter of NY State Department of Transportation (NYSDOT), which has outlined the controlling standard for NIW petitions since 1998.
The revision to adjudicatory standards is welcome as a NIW petition can be filed by an individual (as well as by a company sponsor) based on the individual’s work being deemed in the U.S. national interest, and provides an alternative to the PERM labor certification process, which requires company sponsorship and focuses on whether a minimally qualified US worker is available. For more information about this immigrant visa category, see our website memo.
The previous NYSDOT three prong standard was that 1) the applicant’s work must have intrinsic merit, 2) be national in scope, and 3) it would harm the US national interest to require a PERM labor certification, or conversely the applicant would benefit the US national interest to a greater extent than the PERM labor certification process, because of the applicant’s past record and demonstrable achievement with influence on the field as a whole.
The new Dhanasar standard is that 1) the applicant’s work must have substantial merit and national importance (modifying and combining previous first and second prongs), 2) the applicant must be well positioned to advance the proposed endeavor (based on education, skill, knowledge, record of success, future plan and progress, and interest of potential customers, users, investors, or other entities or individuals), and 3) it would be beneficial to the US to waive the job offer (labor certification) requirement (analyzing whether a job offer/labor certification would be impracticable, whether there is a benefit to the U.S. even if other qualified U.S. workers are available, and whether the national interest in the applicant’s contributions is “sufficiently urgent” to warrant forgoing the labor certification process.
The revision to the applicable standard is intended to be a “more flexible test, which can be met in a range of ways… [and] is meant to apply to a greater variety of individuals.” If USCIS finds that the applicant meets the new three prong test, it may approve a NIW petition in its discretion.
