New developments in the National Interest Waiver green card category

The Administrative Appeals Office (AAO) set a new framework for analyzing National Interest Waiver applications in December of 2016. The AAO vacated its prior 1998 decision in New York State Department of Transportation, known in immigration law as NYSDOT. This new framework, articulated in Matter of Dhanasar, relaxes the standard used to determine if an applicant qualifies, and essentially opens the door to a larger pool of applicants.

The National Interest Waiver category allows highly accomplished foreign professionals to apply for a green card without the need to be sponsored by an employer. This is a wonderful category especially for researchers, medical doctors, scientists, IT professionals involved in developing new technology, geoscientists, petroleum engineers and entrepreneurs to seek permanent residency and avail themselves of the second preference immigrant visa category with the added bonus that the application can be submitted as a self petitioning process, and no employer needs to be involved. For nationals of India such as entrepreneurs, software developers, and IT specialists who would normally wait a long time if they file their petition in the third preference category, the National Interest Waiver could shorten the wait time significantly.

There are a number of differences between the old NYSDOT standard and the new Dhanasar analytical framework. The prior standard included a three-pronged test: (1) the applicant had to show that he/she seeks employment in an area of substantial intrinsic merit, (2) the applicant had to show that the proposed benefit of his/her work is national in scope, and (3) the applicant had to demonstrate that the national interest would be adversely affected if a labor certification were required.

The Dhanasar standard also focuses on a three-pronged test. Under the first prong in Dhanasar, an alien must show that the alien's proposed endeavor/area of expertise must have both substantial merit and national importance. As far as the second prong, Dhanasar requires that the alien show that he/she is well positioned to advance the proposed endeavor. With respect to the second prong, the new framework puts a focus on the endeavor of the foreign national, rather than on the benefit being national in scope. The focus is on the alien's prior accomplishments, education, expertise, and skills. Finally, under the third prong, the alien must demonstrate that on balance, it would be beneficial to the United States to waive the job offer and labor certification requirement. Thus, the third prong is a balancing test under which the government has to balance the interests of the government in protecting U.S. workers and the benefits of the alien's future work in the U.S.

The AAO acknowledges that this is a more flexible test, which can be met in a range of ways, and is meant to apply to a greater pool of qualified foreign professionals and individuals who may not have been able to meet the prior standard. This new framework is a step in the right direction, and is received with great enthusiasm by immigration practitioners.