Jan 11 2017
The Administrative Appeals Office, the office that reviews denials rendered by U.S. Citizenship & Immigration Service (USCIS) gave us a surprising parting gift in 2016 by deciding on a case involving the National Interest Waiver greencard category.
What is the National Interest Waiver (NIW)?
It’s one of only a handful of ways for a foreign national who has an advanced degree (master’s degree or higher) to procure a greencard without employer sponsorship and without having an employer conduct a test of the labor market. It is the second preference category reserved for individuals who want to self-petition for a greencard. While an actual employment offer is not necessary, it’s extremely helpful in demonstrating the applicant will continue to work in their field of expertise.
What Happened Recently?
The NIW standard of eligibility was recently revised by the Administrative Appeals Office (AAO) in late December 2016. While most decisions from the AAO seldom receive this much attention, the case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), is special because the AAO certified the decision as a precedent. This meant that the new criteria outlined in this case shall be the new standard in which the government must review all NIW petitions moving forward. The previous eligibility criteria that was established in the 1998 case (Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT)) was officially no longer valid.
Why Was the Eligibility Standard Changed?
The previous eligibility standards in NYSDOT were “ripe for revision.” The new framework detailed in Matter of Dhanasar was meant to provide greater clarity, apply flexibility in both employer-sponsored and self-sponsor petitions, and “better advance the purpose of the broad discretionary waiver provision to benefit the United States.” In other words, the previous framework was too confusing, vague and difficult for employers and individuals to understand how they were supposed to satisfy each criterion. Under this new framework, the following three prongs are required:
1) Foreign national’s proposed endeavor has substantial merit and national importance
2) Foreign national is well positioned to advance the proposed endeavor
3) The U.S. would benefit by waiving the job offer requirement
What Is the Impact to Foreign Nationals?
In practical terms, what does Matter of Dhanasar actually mean for a foreign national? For most foreign nationals, it means that it will be far easier to understand what types of documents to submit to demonstrate national interest. The guideposts are much clearer, yet still broad enough to account for potentially all fields of endeavor. For example, an entrepreneur in the U.S. developing a diabetes monitoring application that syncs with hospital and doctor records can present an equally cogent and compelling case as an immunologist from a leading research university.
How does this help nationals born in China or India?
If you’ve read this far, you’re probably wondering how this revised framework helps Chinese or Indian nationals, considering the backlog for an EB-2 category is still at historic lengths. With a more streamlined framework, foreign nationals from all countries can benefit if their case is approved with greater ease and speed. An approved I-140 petition means the Chinese or Indian national is eligible to change jobs without the need for their future employer to sponsor them for a greencard. They retain their I-140 priority date and it’s only a matter of time before they can take that final step to apply for a greencard.
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