In a precedent decision issued on December 27, 2016, the USCIS Administrative Appeals Office (AAO) announced a new analytical framework to determine how foreign nationals may qualify for National Interest Waivers (NIW) and created a three part test for those seeking permanent residence in the United States under EB-2 category. The decision is intended to make the waiver more broadly available to foreign nationals pursuing endeavors that benefit the United States, including entrepreneurial ventures.
The new AAO decision, Matter of Dhanasar, vacates the NYSDOT test and replaces it with a more flexible standard. Under the new test, to be eligible for a national interest waiver, an EB-2 petitioner must meet three criteria.
The foreign national’s proposed endeavor has both substantial merit and national importance. To better understand this criteria, AAO gives an example of how an entrepreneur can qualify for the NIW: "an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance".
The foreign national is well positioned to advance the proposed endeavor. AAO explains that the applicant should have "education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals."
On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. This means that USCIS will evaluate the application using such factors as "whether, in light of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate 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.”
If an applicant satisfies these criteria, USCIS may issue a national interest waiver in its discretion.
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