Detailed Analysis of EB2 National Interest Waiver Petition Criteria
1. The EB2 National Interest Waiver Petition and Its Adjudcation Standard
The Immigration and Nationality Act makes National Interest Waiver-based immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”
Normally, EB2 applications must be accompanied by a labor certification documenting that an U.S. employer has tested the job market, and can show there are no able, willing, qualified and available U.S. workers to fill the position. The alien applicant must therefore have a willing employer go through the process of advertising the position and meeting prevailing wage requirements. If a U.S. worker with the minimum qualifications for the job applies, the alien's application will be denied, even if the alien applicant’s qualifications are much stronger.
After nearly two decades, the USCIS Administrative Appeals Office (AAO) has eliminated the much criticized NYSDOT standard for EB2 National Interest Waiver immigration petitions (EB2 NIW), and replaced it with a more realistic one for U.S. Green Card applicants.
The Administrative Adjudications Office of U.S. Citizenship and Immigration Services (USCIS) has issued a precedent on December 27, 2016, which is an administratively binding decision of Matter of Dhanasar. It revises the previous NIW petition criteria, and expands the grounds for pursuing U.S. permanent residence under the National Interest Waiver immigration category. This decision supersedes the previous decision of Matter of New York State Department of Transportation (NYSDOT, 1998).
Prior to NYSDOT criteria, USCIS had suggested that the following 7 factors may be influential in determining whether an applicant's work was in U.S. national interest:
1) improving the U.S. economy;
2) improving wages and/or working conditions of U.S. workers;
3) improving education and training programs for U.S. children and/or under-qualified workers;
4) improving health care in the U.S.;
5) creating more affordable housing for low income residents of the U.S.;
6) improving the environment and/or conserving natural resources; or
7) working on behalf of a U.S. government agency.
Under the 1998 NYSDOT framework, a National Interest Waiver petition is required to pass the three-prong test:
1) the employment is of substantial intrinsic merit;
2) any proposed benefit be national in scope; and
3) the national interest would be adversely affected if a labor certification were required for the foreign national.
For NYSDOT criteria, while prong one and prong two are relatively straightforward, the prong three has essentially been the concerning factor for many national interest waiver petition cases, largely owing to the fact that many USCIS immigration examiners adopted a number of vague and even contradictory analytical approaches, ranging from proving that the foreign national possesses outstanding abilities in order to make a national impact, to showing the infeasibility or undesirability of going through the labor certification application process.
Also, there emerged an uneven and oftentimes contradictory approach to deciding the prong three requirement under NYSDOT, that created certain inconsistencies in National Interest Waiver adjudications.2. Matter of Dhanasar – the New National Interest Waiver Petition Adjudcation Standard
The AAO described the 1998 NYSDOT standard that is being vacated as follows:
1) the NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.”
2) next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.”
3) finally, the petitioner must demonstrate that "the U.S. national interest would be adversely affected, if a labor certification were required for the foreign national."
Mr. Dhanasar is an aerospace engineer engaged in research and teaching, and he is self-petitioned for a National Interest Waiver. In Dhanasar's case, the AAO notes first that the word “intrinsic” in NYSDOT case is too subjective. The AAO also believes the second prong of NYSDOT case requiring the benefit to be “national in scope” is construed too narrowly, by focusing on the geographic impact of the benefit.
But the AAO found the third prong of NYSDOT case that the petitioner must “demonstrate that the national interest would be adversely affected if a labor certification were required” as being the most problematic. The AAO describes that the third prong in NYSDOT case including one stating that applicant must show “influence in the field.” The AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.
The AAO also found that trying to make NIW applicants to show a national interest if they skip a process to recruit unidentified U.S. workers does not make sense, particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest, if a labor certification is bypassed, something is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.
Thus, the AAO is vacating NYSDOT standard, and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”
Under the new Dhanasar standard, an NIW petition case may be approved if
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 requirements of a job offer and thus of a labor certification.
AAO mainly took issue on the NYSDOT case's third prong "the national interest would be adversely affected if a labor certification were required for the foreign national", which led to the dismantling of the NYSDOT framework. As explained by the AAO, this third prong was confusing and vague, and was often interpreted to mean that the petitioner was required "to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego.”
The AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself a matter of discretion.
After nearly 20 years, Matter of Dhanasar criteria provides an important change for NIW petition adjudication. This case creates a more flexible and realistic framework for the NIW immigration category. These changes will lead to a broader spectrum of foreign nationals being eligible for EB2 NIW immigration petition.
3. A Clearer Framework for Adjudicating National Interest Waiver Petitions
USCIS Administrative Appeals Office overturned the old NYSDOT standard of adjudication for national interest waiver petitions, and replaced it with a legal test that is more permissive. The decision for Matter of Dhanasar vacated the longstanding Matter of New York State Department of Transportation. The USCIS has designated the decision as a precedent, and it will be followed by USCIS adjudicators.
The reason for this new analytical approach is to create a clearer framework for adjudicating EB2 National Interest Waiver petition cases. This decision also recognizes that the services of a broader range of endeavors by foreign nationals can contribute to the national welfare, which creates some increased latitude for examining the relationship between a foreign national’s endeavors and their contributions to the national welfare, even if the foreign national can only cite “potential prospective impact” , rather than concrete and existing results.
The Dhanasar case decision opens the NIW category to many alien applicants. The decision reviews the history of NIWs and what did and didn’t work in the past. USCIS is optimistic that this new decision will make NIW green cards more accessible in general. Here are the few aspects of the new decision:
1) The case allows using the person’s degrees and experience. This benefits highly educated alien applicants.
2) The case allows teaching as evidence. So an applicant who also teaches in his or her field will now get a boost in the NIW category.
3. The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Alien applicants can argue the impact of their work on the economy, starting regionally, and then adding national implications if applicable.
4) Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision notes that “evidence that the endeavor has significant potential to employ U.S. workers, or has other substantial positive economic effects may well be understood to have national importance.”
5) The decision also notes that alien applicants' venture does not need to succeed: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.” The business just needs to be “well positioned to advance the proposed endeavor.”
6) The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for some alien applicants, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary.
This framework of Dhanasar decision for national interest waivers opens the door of U.S. permanent residence to an expanded range of foreign nationals, including:
- junior scientists,
- postdoctoral scholars
- 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;
- a wide range of other endeavors that contribute to the U.S. national welfare, or even prospectively contribution.
As always, NIW immigration category is a chance for creativity in showing a foreign national’s talents.
4. The Improvement for National Interest Waiver Petition Adjudcation
USCIS Administrative Appeals Office clearly wanted to move away from requiring NIW petitioners to "establish geographic national benefit." The Dhanasar decision notes that the old NYSDOT requirements created more confusion with each restatement for both NIW petitioners and USCIS adjudicators.
But the new Dhanasar standard presents its own challenges. How will the USCIS adjudcators decide if an alien's work will have “substantial merit” and “national importance”? In the Dhanasar case, the petitioner works in research and development of air and space propulsion systems, which should benefit U.S. national defense and should meet the first prong. Further, Dhanasar will work at a University, where he will be able to disseminate his research. Therefore, he can rather easily meets the second prong concerning being well positioned to advance the proposed endeavor.
The clear statement of the Dhanasar adjudication test is an improvement, as is the decreased emphasis on "geographic impact." It is also an improvement to not require proofs that the national interest will be harmed by requiring a labor certification, and by explicitly requiring a comparison of the petitioner to other workers in the field.
Still, the key adjudication in the Dhanasar standards “both substantial merit and national importance,” “well-positioned,” and “beneficial to the U.S. to waive the requirement”, leave much to interpretation and case-by-case decisions for NIW petitions. The key beneficiaries of this decision may be self-employed, entrepreneurs, those in higher educated professions with traditionally localized focuses, such as certain physicians, engineers, and architects.
5. The Analysis of EB2 National Interest Waiver Petition Matter of Dhanasar Prong 1: Substantial Merit and National Importance
Alien applicant must first establish that his or her occupation or field of research possesses substantial merit and national importance. In other words, the alien applicant's work must benefit the U.S. national interest in some way. To meet the first prong, the petitioner should establish that the alien beneficiary's employment in the United States is in an area of substantial merit and national importance. The importance of the alien's employment or the field of endeavor should be established to meet the threshold requirement.
The failure to meet the first prong of NIW test may result in a NIW petition denial. For example, the denial of an EB2 NIW petition by a traditional Korean physical therapist was grounded in part on the USCIS' decision that the alien applicant's physical therapy services relied on unproved therapies that "had not gained broad acceptance in the general scientific community," and therefore could not constitute substantially meritorious activities, and with substantial merit and national importance.
To qualify for a EB2 National Interest Waiver, the petitioner needs to show that the alien applicant works in a field that will substantially benefit to the United States, or it is related to an important U.S. national goal. The previous USCIS listed 7 factors can be used to guide whether an employment field has substantial merit and national importance, or whether the alien's employment is in the proposed field:Substantial Merit: Economic Impact Not Required. The first prong has two elements - substantial merit and national importance. USCIS will focus on the specific endeavor in which the foreign national plans to engage. Such endeavors may be in a wide range of areas, including business, entrepreneurialism, science, technology, culture, health, or education.
1) Improves the U.S. economy;
2) Improves wages and working conditions of U.S. workers;
3) Improves education and training programs for U.S. children and under-qualified workers;
4) Improves health care;
5) Provides more affordable housing for young and/or older, poorer U.S. residents;
6) Improves the environment of the U.S. and make more productive use of natural resources; or,
7) Has been requested from an interested U.S. government agency.
Establishing the first element within this prong, "substantial merit", does not require a showing of a likely significant economic impact. While such evidence is a positive factor, it is not a requirement. USCIS acknowledged that pure science and furtherance of human knowledge are valuable, and have substantial merit in themselves.
For this requirement, the alien applicants should focus on the proposed employment itself. Thus, it is important to show what the applicant will do in a field with substantial merit. Under the first prong of the Dhanasar test, the alien applicant must seek employment in an area that has substantial merit. It is important to focus on the proposed employment.
National Importance: Not Always National in Scope. The second element of the first prong, "national importance", is determined by the potential prospective impact of the endeavor. USCIS explained that this element is not evaluated purely by geography. The national or global impact is no longer required. The USCIS will look at the “broader implications”, and states that even works which focus on one geographic area in the U.S. can have national importance.
The AAO found NYSDOT’s focus on “national in scope” unduly emphasized geographic expansiveness. The Dhanasar decision gives a clear way to investors and entrepreneurs in stating that “an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area may well be understood to have national importance.”
This prong does not requires that the benefit derived from the alien's presence in the United States must be national in scope. An alien entrepreneurs could meet the requirement by demonstrating that the business will create related jobs in the United States, and the jobs created even locally have a positive national impact and importance.
The employment with “substantial merit and national importance” may include researchers in most scientific fields, social scientists studying societal trends in the U.S., or alien's work having the ability to affect and improve the U.S. economy or social policies. The following are examples of approved EB2 National Interest Waiver petitions for their employments with "substantial merit":
- A postdoctoral researcher in the field of chemistry developing anti-viral and anti-cancer drugs contributes to the health of millions in the U.S.
- An civil engineer working on improving the durability of asphalt improves infrastructure, safety, and transportation in the U.S.
- A consultant in the field of Petroleum Engineering improves the efficiency of energy production in the U.S., and contributes to the development of environmentally-friendly practices.
- An opera singer brings the arts to society, and contributes to the body of knowledge on vocal health.
- An animator contributes to the advancement of American art and design.
- A physician in the field of gastroenterology contributes to the advancement of the diagnosis and treatment of digestive diseases, improving healthcare in the U.S.
- An entrepreneur contributes to the economy and creation of jobs within the U.S.
- A research associate in the field of economics contributes to risk management and economic growth in the U.S.
- A medical researcher in the field of oncology impacts healthcare nationwide through research contributing to the development of cancer therapies.
- A physician contributes to the advancement of diagnostic practices that are implemented across the nation.
- A postdoctoral researcher in the field of electrochemistry contributes to performance of batteries, which can be used nationwide.
- A musician, through their nationwide performances and the dissemination of their music through CD sales, contributes to the artistic culture of the nation as a whole.
- A geologist studying mineral-water reactions contributes to the water safety of the U.S.
- A web-developer contributes to the development of web-content that will be used nationwide.
Generally, this criteria can be easily met in most cases, and many Request for Additional Evidence (RFE) has not used this criteria as its basis.
6. The Analysis of EB2 National Interest Waiver Petition Matter of Dhanasar Prong 2: Foreign National’s Position to Advance the Endeavor
Under the new Dhanasar standard, an NIW petition case may be approved if "the foreign national is well positioned to advance the proposed endeavor." This prong changes the focus to the foreign national, and examines whether that person actually will be able to advance the proposed endeavor.
This prong changes the focus to the foreign national, and examines whether that person actually will be able to advance the proposed endeavor. USCIS included numerous, non-exhaustive factors that will be considered. These include the individual’s education, record of success in related or similar efforts, and knowledge.
This prong position to advance the proposed endeavor. This element can be established via plans for future activities, progress toward the endeavor, the interest of potential customers, investors or other relevant entities. The allowance for the use of this type of evidence is again favorable for entrepreneurs and inventors.
Additionally, the USCIS will consider a model or plan for future activities and any progress made towards achieving the proposed endeavor. The submitted evidence may include the entrepreneur's history and the detailed business' operations. In determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to:
- the individual’s education, skills, knowledge, record of success in similar areas;
- progress made in achieving the proposed endeavor;
- the interest of other related parties, such as users, customers, or investors;
The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields.
- additionally, the USCIS will consider a model or plan for future activities and any progress made towards achieving the proposed endeavor.
7. The Analysis of EB2 National Interest Waiver PetitionPetition Matter of Dhanasar Prong 3: On Balance, It Would be Beneficial to the United States to Waive the Requirements of a Job Offer and thus of a Labor Certification
Historically, the third prong has been the most difficult aspect of a NIW petition. Now, it is no longer necessary to show that the U.S. national interest would be harmed in the absence of a waiver of labor ertification, and no comparison of the applicant to others in the field is required. Rather, the question to be asked is “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 significantly urgent to warrant forgoing the labor certification process.”
The third and most important EB2 national interest waiver standard focuses on the particular alien applicant. The benefit derived from the alien applicant's participation in the national interest field of endeavor must "considerably" outweigh the inherent national interest in Labor Certification process which is in place to protect U.S. workers.
Thus, this third EB2 NIW standard sets up a balancing of U.S. national interests, with the U.S. national interest in the labor certification process as a strong adverse factor in granting the EB2 National Interest Waiver petition. The alien applicant or U.S. employer must present strong evidence or arguments for this standard.
USCIS will consider whether the nature of the endeavor makes it impractical to present a job offer or obtain a labor certification. The Matter of Dhanasar decision cites foreign nationals with unique knowledge or skills not easily set out in a labor market test, as well as entrepreneurs and the self-employed, as potentially appropriate for an NIW petition. The factors are to be considered together, and a decision is to be based upon whether, on balance, it would be beneficial to waive the job offer and labor market test requirements.
The submitted evidence should establish that the alien applicant will provide a "significant benefit" to the field. Therefore, only indicating that the alien applicant's skills are "unique" is not sufficient, but rather the benefit of the alien's experience and skills should "considerably outweigh" the U.S. national interest in the labor certification process.
Regarding the third prong of the Matter of Dhanasar case, the AAO listed the following factors that may be considered in showing that "on balance it benefits the U.S. to waive the requirements of a job offer and labor certification":
- in light of the foreign national’s background;
- whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf;
- whether it would still benefit the U.S. even if other qualified U.S. workers are available; and
- whether U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification.
It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.
The third prong is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals.
This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved EB2 National Interest Waiver petition.
7. The "Labor Shortage" or Alien Applicant's "Uniqueness" Are Not Sufficient for EB2 National Interest Waiver Petition
The third prong eliminates the “labor shortage” arguments or claims for some EB2 national interest waiver applicants. It is no longer viable to argue that an alien applicant's employment is necessary to satisfy a labor shortage in the United States, because the labor certification process is designed exactly to address the issue of labor shortage in the United States.
USCIS states that the labor certification requirement “exists because protecting the job opportunities of U.S. workers having the same objective qualifications as a foreign national seeking employment is in the national interest. A foreign national seeking an exemption from this process must present a national benefit so great as to outweigh the national interest in the labor certification process.” If a labor shortage really exists in a field or industry, then no U.S. workers are available to qualify the job, and therefore a labor certification application for an alien worker will prevail.
Based on the USCIS decision, EB2 national interest waiver petitioners should no longer argue the uniqueness of an alien applicant's skills and experience, or how difficulty to find U.S. workers with such skills to justify a National Interest Waiver request, because the alien applicants with such skills or experience should go through the labor certification process, not an EB2 NIW process.
8. How to Meet the Third Prong of EB2 National Interest Waiver Petition - Alien Applicant's Standing in the Field
Only focusing on the importance of the alien applicant's field will not suffice for an EB2 national interest waiver petition. An important factor in the third prong determination is that a petitioner needs to emphasize the alien applicant's standing in the field, and the importance of alien's work at a national level. Evidence should be submitted regarding the relative standing of the alien applicant in the field, and submitted evidence should establish that the alien is superior to other workers in the field.
It is USCIS' view that only the individuals who will be serving critical U.S. interests should be issued the National Interest Waivers. For the quality of evidence, USCIS will focus on the alien's history of valuable contributions in the field, the critical role played in completed projects, and the alien's contributions in terms of their practical significance.
For example, USCIS denied an EB2 National Interest Waiver petition filed on behalf of medical researcher whose research lacked immediate clinical or practical significance, and resulted in untested theoretical model. The USCIS adjudicator indicated that the National Interest Waiver application was premature, due to the theoretical nature of the research, and explained that only tangible and immediate manifestations of a "track record of success" would support a research based National Interest Waiver petition. For this case, USCIS has evaluated the alien's contributions in terms of their practical significance.
9. Use the Publication Citations as Strong Evidence for Your EB2 National Interest Waiver Petition
When evaluating alien's publication citations and an alien’s research work, U.S. Citizenship and Immigration Services (USCIS) will determine the significance of the alien’s original contribution to the field that resulted in the citations.
To use the citations as strong evidence for EB2 National Interest Waiver Petition, the alien applicant should establish the publication's circulation and intended audience. Some citations, especially passing citations, do not suffice. Also, articles that cite the alien‘s work as one of multiple footnotes or endnotes are generally not “about” the alien‘s work. USCIS may not be persuaded that citations of an article authored by the alien beneficiary constitute published material about the alien‘s work.
The alien applicant should include citation report from an online source (GoogleScholar, SciFinder, or the Web of Science). Citation record can help USCIS understand that the field has acknowledged the alien applicant's research, and original research contribution in the field.
In some cases, inclusion of a lengthy list of referenced articles that often accompany published articles might be probative of the alien’s ability, because the alien’s contributions served as a significant, original contribution that spurred the subsequent references and citations.
10. How to Reply RFE (Request For Evidence) Request for EB2 National Interest Waiver Petition?When an USCIS adjudicator is unable to complete the processing of an EB2 National Interest Waiver petition without further information, it will send out a Request For Evidence notice to ask required evidence. The alien applicant should read and comply with the request carefully, then submit the evidence to USCIS, and including a copy of RFE letter and place the attached gold sheet on top of the submitted documents.
For Form I-140 petition in the EB2 National Interest Waiver category, the alien applicant should be a member of the professions holding an advanced degree or an alien of exceptional ability, and the petitioner must establish that the national interest would not be served if the petitioner was required to obtain a labor certificate for the proposed employment.
If the alien applicant is a researcher, the petitioner should submitt evidence establishing he or she authored several scientific publications. The petitioner also submitted reference letters from individuals working in his or her field of specialty attesting of the significance of his or her work.
The submitted evidence should establish that the petitioner's work has yet had any wide effect on his or her entire field. While adding to the overall body of knowledge in a given field is important, it also should establish that the petitioner is eligible for national interest waiver.
Also, the petitioner must establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner' previous work influence on the field as a whole must justify projections of future benefits to the national interest. Reference letters without any independent and objective evidence would not suffice to establish prior achievement.
11. USCIS Decision for Dr. Dhanasar 's NIW Petition
The following is the exact language of the decision by the Administrative Appeals Unit that USCIS has stated it will use as a standard while processing all NIW request pending before and after December 27, 2016.
Cite as 26 I&N Dec. 884 (AAO 2016) Interim Decision #3882
Matter of DHANASAR, Petitioner
Decided December 27, 2016
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), vacated.
ON BEHALF OF PETITIONER: Gerard M. Chapman, Esquire, Greensboro, North Carolina
In this decision, we have occasion to revisit the analytical framework for assessing eligibility for “national interest waivers” under section 203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(B)(i) (2012). The self-petitioner, a researcher and educator in the field of aerospace engineering, filed an immigrant visa petition seeking classification under section 203(b)(2) of the Act as a member of the professions holding an advanced degree. The petitioner also sought a “national interest waiver” of the job offer otherwise required by section 203(b)(2)(A).
The Director of the Texas Service Center denied the petition under the existing analytical framework, concluding that the petitioner qualifies for classification as a member of the professions holding an advanced degree but that a waiver of the job offer requirement would not be in the national interest of the United States. Upon de novo review, and based on the revised national interest standard adopted herein, we will sustain the appeal and approve the petition.
I. LEGAL BACKGROUND
Subparagraph (A) of section 203(b)(2) of the Act makes immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational
interests, or welfare of the United States.” Under subparagraph (A), immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.”
Before hiring a foreign national under this immigrant classification, an employer must first obtain a permanent labor certification from the United States Department of Labor (“DOL”) under section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) (2012). See also 8 C.F.R. § 204.5(k)(4)(i) (2016). A labor certification demonstrates that DOL has determined that there are not sufficient workers who are able, willing, qualified, and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. In its labor certification application, the employer must list the position’s job requirements consistent with what is normally required for the occupation. See 20 C.F.R. § 656.17(h)(1) (2016). Moreover, the job requirements described on the labor certification application must represent the actual minimum requirements for the job opportunity. See 20 C.F.R. § 656.17(i)(1). That is, the employer may not tailor the position requirements to the foreign worker’s qualifications; it may only list the position’s minimum requirements, regardless of the foreign worker’s additional skills that go beyond what is normally required for the occupation. The employer must then test the labor market to determine if able, willing, or qualified U.S. workers are available with the advertised minimum qualifications. If such U.S. workers are found, the employer may not hire the foreign worker for the position, even if the foreign worker clearly has more skills (beyond the advertised qualifications). If the employer does not identify such U.S. workers and DOL determines that those workers are indeed unavailable, DOL will certify the labor certification. After securing the DOL-approved labor certification, the employer may then file a petition with DHS requesting the immigrant classification.
Under subparagraph (B) of section 203(b)(2), however, the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, under the applicable regulations, of “a labor certification.” 8 C.F.R. § 204.5(k)(4)(ii).1 That subparagraph states, in pertinent part, that the Secretary “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”2 Section 203(b)(2)(i) of the Act.
USCIS may grant a national interest waiver as a matter of discretion if the petitioner satisfies both subparagraphs (A) and (B). Thus, a petitioner who seeks a “national interest waiver” must first satisfy subparagraph (A) by demonstrating that the beneficiary qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(1)–(3) (providing definitions and considerations for making such determinations); see also section 203(b)(2)(C) of the Act (providing that possession of requisite academic degree or professional license “shall not by itself be considered sufficient evidence of exceptional ability”). The petitioner must then satisfy subparagraph (B) by establishing that it would be in the national interest to waive the “job offer” requirement under subparagraph (A).3 See 8 C.F.R. § 204.5(k)(4)(ii). This two-part statutory scheme is relatively straightforward, but the term “national interest” is ambiguous. Undefined by statute and regulation, “national interest” is a broad concept subject to various interpretations.
In 1998, under the legacy Immigration and Naturalization Service, we issued a precedent decision establishing a framework for evaluating national interest waiver petitions. Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).
The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.
Based on our experience with that decision in the intervening period, we believe it is now time for a reassessment. While the first prong has held up under adjudicative experience, the term “intrinsic” adds little to the analysis yet is susceptible to unnecessary subjective evaluation.4 Similarly, the second prong has caused relatively few problems in adjudications, but occasionally the term “national in scope” is construed too narrowly by focusing primarily on the geographic impact of the benefit. While NYSDOT found a civil engineer’s employment to be national in scope even though it was limited to a particular region, that finding hinged on the geographic connections between New York’s bridges and roads and the national transportation system. Certain locally or regionally focused endeavors, however, may be of national importance despite being difficult to quantify with respect to geographic scope.
What has generated the greatest confusion for petitioners and adjudicators, however, is NYSDOT’s third prong. First, this prong is explained in several different ways within NYSDOT itself, leaving the reader uncertain what ultimately is the relevant inquiry. We initially state the third prong as requiring a petitioner to “demonstrate that the national interest would be adversely affected if a labor certification were required.” NYSDOT, 22 I&N Dec. at 217. We then alternatively describe the third prong as requiring the petitioner to demonstrate that the individual “present[s] a national benefit so great as to outweigh the national interest inherent in the labor certification process.”Immediately thereafter, we restate the third prong yet again: the petitioner must establish that the individual will “serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”5 Finally, in what may be construed as either a fourth restatement of prong three or as an explanation of how to satisfy it, we state that “it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest.” at 219. A footnote to this statement clarifies that USCIS seeks “a past history of demonstrable achievement with some degree of influence on the field as a whole.” Although residing in footnote 6, this “influence” standard has in practice become the primary yardstick against which petitions are measured.
Second, and a more fundamental challenge than parsing its several restatements, NYSDOT’s third prong can be misinterpreted to require the petitioner to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego. The first iteration of prong three, that the national interest would be adversely affected if a labor certification were required, implies that petitioners should submit evidence of harm to the national interest. The third iteration, that the individual will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications, suggests that petitioners should submit evidence comparing foreign nationals to unidentified U.S. workers. These concepts have proven to be difficult for many qualified individuals to establish or analyze in the abstract. It has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs. In NYSDOT, we even “acknowledge[d] that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification.” Nonetheless, we did not modify the test to resolve this scenario, which continues to challenge petitioners and USCIS adjudicators. Lastly, this concept of harm-to-national-interest is not required by, and unnecessarily narrows, the Secretary’s broad discretionary authority to grant a waiver when he “deems it to be in the national interest.”
II. NEW ANALYTICAL FRAMEWORK
Accordingly, our decision in NYSDOT is ripe for revision. Today, we vacate NYSDOT and adopt a new framework for adjudicating national interest waiver petitions, one that will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.7
Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:8 (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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.9
The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. 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 second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s 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.
We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
The third prong requires the petitioner to demonstrate 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. On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications.
In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature 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;10 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.
We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.
The director found the petitioner to be qualified for the classification sought by virtue of his advanced degrees. We agree that he holds advanced degrees and therefore qualifies under section 203(b)(2)(A). The remaining issue before us is whether the petitioner has established, by a preponderance of the evidence, that he is eligible for and merits a national interest waiver.
The petitioner proposes to engage in research and development relating to air and space propulsion systems, as well as to teach aerospace engineering, at North Carolina Agricultural and Technical State University (“North Carolina A&T”). The petitioner holds two master of science degrees, in mechanical engineering and in applied physics, as well as a Ph.D. in engineering, from North Carolina A&T. At the time of filing the instant petition, he also worked as a postdoctoral research associate at the university. The record reflects that the petitioner’s graduate and postgraduate research has focused on hypersonic propulsion systems (systems involving propulsion at speeds of Mach 5 and above) and on computational fluid dynamics. He has developed a validated computational model of a high-speed air-breathing propulsion engine, as well as a novel numerical method for accurately calculating hypersonic air flow. The petitioner intends to continue his research at the university.
The extensive record includes: reliable evidence of the petitioner’s credentials; copies of his publications and other published materials that cite his work; evidence of his membership in professional associations; and documentation regarding his research and teaching activities. The petitioner also submitted several letters from individuals who establish their own expertise in aerospace, describe the petitioner’s research in detail and attest to his expertise in the field of hypersonic propulsion systems.
We determine that the petitioner is eligible for a national interest waiver under the new framework. First, we conclude that the petitioner has established both the substantial merit and national importance of his proposed endeavor. The petitioner demonstrated that he intends to continue research into the design and development of propulsion systems for potential use in military and civilian technologies such as nano-satellites, rocket-propelled ballistic missiles, and single-stage-to-orbit vehicles. In letters supporting the petition, he describes how research in this area enhances our national security and defense by allowing the United States to maintain its advantage over other nations in the field of hypersonic flight. We find that this proposed research has substantial merit because it aims to advance scientific knowledge and further national security interests and U.S. competitiveness in the civil space sector.
The record further demonstrates that the petitioner’s proposed endeavor is of national importance. The petitioner submitted probative expert letters from individuals holding senior positions in academia, government, and industry that describe the importance of hypersonic propulsion research as it relates to U.S. strategic interests. He also provided media articles and other evidence documenting the interest of the House Committee on Armed Services in the development of hypersonic technologies and discussing the potential significance of U.S. advances in this area of research and development. The letters and the media articles discuss efforts and advances that other countries are currently making in the area of hypersonic propulsion systems and the strategic importance of U.S. advancement in researching and developing these technologies for use in missiles, satellites, and aircraft.
Second, we find that the record establishes that the petitioner is well positioned to advance the proposed endeavor. Beyond his multiple graduate degrees in relevant fields, the petitioner has experience conducting research and developing computational models that support the mission of the United States Department of Defense (“DOD”) to develop air superiority and protection capabilities of U.S. military forces, and that assist in the development of platforms for Earth observation and interplanetary exploration. The petitioner submitted detailed expert letters describing U.S. Government interest and investment in his research, and the record includes documentation that the petitioner played a significant role in projects funded by grants from the National Aeronautics and Space Administration (“NASA”) and the Air Force Research Laboratories (“AFRL”) within DOD.11 Thus, the significance of the petitioner’s research in his field is corroborated by evidence of peer and government interest in his research, as well as by consistent government funding of the petitioner’s research projects. The petitioner’s education, experience, and expertise in his field, the significance of his role in research projects, as well as the sustained interest of and funding from government entities such as NASA and AFRL, position him well to continue to advance his proposed endeavor of hypersonic technology research.
Third and finally, we conclude 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. As noted above, the petitioner holds three graduate degrees in fields tied to the proposed endeavor, and the record demonstrates that he possesses considerable experience and expertise in a highly specialized field. The evidence also shows that research on hypersonic propulsion holds significant implications for U.S. national security and competitiveness. In addition, the repeated funding of research in which the petitioner played a key role indicates that government agencies, including NASA and the DOD, have found his work on this topic to be promising and useful. Because of his record of successful research in an area that furthers U.S. interests, we find that this petitioner offers contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available.
In addition to conducting research, the petitioner proposes to support teaching activities in science, technology, engineering, and math (“STEM”) disciplines. He submits letters favorably attesting to his teaching abilities at the university level and evidence of his participation in mentorship programs for middle school students. While STEM teaching has substantial merit in relation to U.S. educational interests, the record does not indicate by a preponderance of the evidence that the petitioner would be engaged in activities that would impact the field of STEM education more broadly. Accordingly, as the petitioner has not established by a preponderance of the evidence that his proposed teaching activities meet the “national importance” element of the first prong of the new framework, we do not address the remaining prongs in relation to the petitioner’s teaching activities.
The record demonstrates by a preponderance of the evidence that: (1) the petitioner’s research in aerospace engineering has both substantial merit and national importance; (2) the petitioner is well positioned to advance his research; and (3) on balance, it is beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. We find that the petitioner has established eligibility for and otherwise merits a national interest waiver as a matter of discretion.
In visa petition proceedings, it is the petitioner’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 (2012). The petitioner has met that burden.
ORDER: The appeal is sustained and the petition is approved.
1. While appearing to limit national interest waivers to only aliens possessing exceptional ability in the sciences, arts, or business, 8 C.F.R. § 204.5(k)(4)(ii) was superseded in part by section 302(b)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1743 (“MTINA”). Section 302(b)(2) of MTINA amended section 203(b)(2)(B)(i) of the Act by inserting the word “professions” after the word “arts,” and thereby made the national interest waiver available to members of the professions holding advanced degrees in addition to individuals of exceptional ability.
2. Pursuant to section 1517 of the Homeland Security Act (“HSA”) of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland Security. See also 6 U.S.C. § 542 note (2012); 8 U.S.C. § 1551 note (2012).
3. To do so, a petitioner must go beyond showing the individual’s expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines “exceptional ability” as “a degree of expertise significantly above that ordinarily encountered” in a given area of endeavor. By statute, individuals of exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his field of expertise.
4. Cf., e.g., 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 514 F. Supp. 2d 571, 575 (S.D.N.Y. 2007) (“‘Intrinsic value’ is an inherently subjective and speculative concept.”).
5. Other, slight variations of the third prong emerge later in the decision. See NYSDOT, 22 I&N at 220 (“to a greater extent than U.S. workers”); see also id. at 221 (“considerably outweigh”).
Cite as 26 I&N Dec. 884 (AAO 2016) Interim Decision #3882
6. While this “influence” standard rests upon the reasonable notion that past success will often predict future benefit, our adjudication experience in the years since NYSDOT has revealed that there are some talented individuals for whom past achievements are not necessarily the best or only predictor of future success.
Cite as 26 I&N Dec. 884 (AAO 2016) Interim Decision #3882
7. Going forward, we will use “petitioners” to include both employers who have filed petitions on behalf of employees and individuals who have filed petitions on their own behalf (namely, self-petitioners).
8. Under the “preponderance of the evidence” standard, a petitioner must establish that he or she more likely than not satisfies the qualifying elements. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). We will consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. Id.
9. Because the national interest waiver is “purely discretionary,” Schneider v. Chertoff, 450 F.3d 944, 948 (9th Cir. 2006), the petitioner also must show that the foreign national otherwise merits a favorable exercise of discretion. See Zhu v. Gonzales, 411 F.3d 292, 295 (D.C. Cir. 2005); cf. Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002).
10. For example, the labor certification process may prevent a petitioning employer from hiring a foreign national with unique knowledge or skills that are not easily articulated in a labor certification. See generally 20 C.F.R. § 656.17(i). Likewise, because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer.
11. Although the director of North Carolina A&T’s Center for Aerospace Research (“CAR”) is listed as the lead principal investigator on all grants for CAR research, the record establishes that the petitioner initiated or is the primary award contact on several funded grant proposals and that he is the only listed researcher on many of the grants.
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