Groundbreaking Decision in Matter of Dhanasar as USCIS Adopts NEW National Interest Waiver Eligibility Standard
Last year, just a couple of days before the end the year, the USCIS Administrative Appeals Office (AAO) made a groundbreaking decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The decision effectively changed how to determine the eligibility of national interest waivers for foreign workers. U.S. employers seeking to hire foreigners can now avoid the complicated PERM process in their pursuit of a green card for the job seeker by first finding out if they are eligible for a national interest waiver.
Several roads can lead to the green card for a foreigner, one of the most popular being pursuing employment in the EB-2 visa/ green card category. Applications in this category, must be accompanied by a PERM labor certification. Requirements for the certification include advertising for the vacancy, proving that it was impossible to get a qualified U.S. worker to fill the vacancy or that the ones available were not enough.
The Immigration and Nationality Act (INA) by subparagraph (A) of section 203(b)(2) of the act allows a discretionary waiver ( called a national interest waiver) of the job offer and attendant required labor certification. The essentials of this section empowers the Secretary to “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States” where it is in the national interest of the United States.
The foreigner must be a professional who has advanced degrees or has exceptional abilities in the sciences, arts or business that will substantially and sustainably benefit the economy, cultural, educational and other welfare of the United States. This means an employer can avoid putting out recruitment ads which is a requirement with permanent labor certification.
The OLD three-pronged test to establish eligibility for the national interest waiver:
Before the Matter of Dhanasar, the courts had established a three-prong test in Matter of New York State Department of Transportation (NYSDoT). This had been the applicable test since 1998 and required that:
- The foreign petitioner must show that the area of employment waiver is being sought for was of substantial intrinsic merit.
- The foreign petitioner must show that proposed benefits would be of a national reach.
- The foreign petitioner must finally show that it would be against national interest to require a labor certification.
Proof of each test was strict. Several persons have criticised this NYSDoT as being too restrictive. Fortunately, the courts have replaced this old eligibility test with the groundbreaking decision in Dhanasar.
The NEW three-pronged test to establish eligibility for the national interest waiver:
The new eligibility tests are more flexible than the ones they replaced, allowing for more foreigners to benefit. The standard of proof in the new test was preponderance of evidence, i.e. what prevails is how strong the evidence is and not necessary how much evidence.
- The foreign petitioner must show that the proposed endeavor has both substantial merit and is of national importance. This means professionals from the entrepreneurial, science, health, technology, culture and educational fields would be accommodated in large numbers.
- The foreign petitioner must be possessed of the knowledge, skills and education needed to carry out the proposed endeavor. However, petitioner does not need to show that the proposed endeavor will be successful.
- Finally, foreign petitioner must show that the proposed endeavor is beneficial enough to the welfare of the U.S. to warrant a waiver based on national interests.
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