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National Interest Waiver Legal Standard Revised

January 5, 2017

Recent changes in employment based immigration law - a new precedent

setting Administrative Appeals Office (AAO) decision and a final rule changing certain employment based immigrant and nonimmigrant visa regulations—will have a significant impact on U.S. businesses as well as the highly skilled foreign workers they employ.


On December 27, 2016, the AAO issued a new precedential decision Matter of Dhanasar, articulating the new standard under which National Interest Waiver (NIW) cases should be adjudicated. The NIW is the form through which U.S. Citizenship and Immigration Services applies section 203(b)(2)(B)(i) of the Immigration and Nationality Act (INA) which waives the “labor certification” for foreign nationals with advanced degrees working in fields of national interest. The labor certification requires businesses to first attempt to hire qualified American workers through a series of stringently enforced recruitment steps before sponsoring foreign nationals for permanent resident status.


In its decision, the AAO explicitly vacates the prior standard set forth in its 1998 decision Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), commonly referred to as “NYSDOT.” In Dhanasar, the AAO explains that the standard set forth in NYSDOT decision caused too much confusion among adjudicators and proved too difficult for “many qualified individuals to establish.” In Dhanasar, the AAO provides a simpler formulation of the NIW standard. The NIW should now be granted when:


[T]he petitioner demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (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.


The decision then goes on to provide examples of evidence to satisfy each of the three requirements.


Immigration attorneys and their clients have been asking the AAO to vacate NYSDOT for years, noting that the old standard is too vague and that many deserving cases were denied, which hurts not only the high skilled applicants by the U.S. as a whole. The Dhanasar decision is a welcomed change which is sure to lead to more predictable NIW adjudications in the future.

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