One way to obtain a green card is to file a national interest waiver (NIW) application. Foreign nationals can qualify if they can show their work is in the national interest. There are two significant advantages to this immigration strategy: 1) a foreign national can self-petition rather than having to be sponsored by an employer; and 2) the submission is made directly to the U.S. Citizenship and Immigration Services (USCIS), thereby avoiding the normal recruitment and advertising requirements of the labor certification application process through the Department of Labor. Despite its advantages, however, immigration examiners have operated under vague guidance on NIW adjudication standards.
The Administrative Appeals Office of USCIS (AAO) recently issued a precedent decision called Matter of Dhanasar that revises and expands the grounds for pursuing an NIW-based green card. This decision supersedes a previous 1998 decision called Matter of New York State Department of Transportation (NYSDOT).
Under the NYSDOT framework, a NIW case required fulfillment of 3 prongs: 1) the foreign national’s endeavor is national in scope; 2) the foreign national’s work is “intrinsically meritorious;” and 3) factors in the case outweigh the need to test the U.S. labor market through the labor certification application process. While prongs 1-2 were relatively straightforward, prong 3 led to uneven and at times contradictory NIW adjudications.
The improved analytical framework spelled out by the AAO in Matter of Dhanasar states: 1) the foreign national’s proposed endeavor has both substantial merit and national importance; 2) the foreign national is well-positioned to advance the proposed endeavor; and 3) on balance, it would be beneficial to the United States to waive the job offer and the labor certification application requirement.
This new analytical approach creates a clearer framework for adjudicating NIW cases. This decision implicitly recognizes that a broader range of endeavors by foreign nationals can contribute to the national welfare, which creates greater latitude for examiners to approve NIW cases that can establish “potential prospective impact” rather than concrete, existing results.
The Alliance of Business Immigration Lawyers believes this new framework for NIW cases opens the door to permanent residence for an expanded range of foreign nationals, including junior scientists, postdoctoral scholars, and biomedical researchers; entrepreneurs involved in job creation; academic physicians; certain advanced-level graduate students, particularly those engaged in the STEM disciplines; certain artists operating at a national level; and a wide range of other professionals who contribute (or even prospectively contribute) to the national welfare.