is the New Precedential National Interest Waiver Decision Released by AAO?
What is the new precedential National Interest Waiver decision released by AAO, and the case of Matter of Dhanasar?
In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition.
For an EB2 National Interest Waiver petition, USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent, or because of exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions, or business.
In the landmark case of Matter of New York State Department of Transportation (NYSDOT). USCIS established a framework for evaluating national interest waiver petitions. This EB2 NIW petition case required:
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.
In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions, which is stated as:
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:
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.
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion. In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner:
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