In a recent precedent decision issued through its Administrative Appeals Office (AAO), U.S. Citizenship and Immigration Services (USCIS) has created a new and flexible analytical framework for determining whether a foreign national pursuing permanent residence is eligible for a National Interest Waiver (NIW). Such a waiver will allow an applicant to become a permanent resident without having to go through the cumbersome and difficult PERM labor certification process.

The NIW was created by Congress in 1990 to allow individuals to bypass the lengthy labor certification process if they can establish that their continued presence will further the "national interest" of the United States. Since 1998, USCIS decisions on whether to grant NIWs were governed by a prior AAO decision, Matter of New York State Department of Transportation, which set forth a very restrictive test of eligibility that few could satisfy. The new AAO decision, Matter of Dhanasar, vacates the restrictive NYSDOT test and replaces it with a more flexible and more generous standard.

To be eligible for an NIW under the new test, an EB-2 petitioner must meet all of the following criteria by a preponderance of the evidence:

  1. The proposed endeavor must have substantial merit and national importance. A wide range of fields of endeavor may qualify as having substantial merit under the NIW standard, including business, science, technology, culture and education. The petitioner is not required to show the endeavor will have a significant economic impact to establish its substantial merit. For example, a purely science-related position, while not creating economic benefits, may still have substantial merit in that the endeavor "furthers human knowledge." The petitioner must also show that the proposed endeavor has prospective national importance. Unlike the previous restrictive AAO test — which required the petitioner to demonstrate the endeavor's geographically nationwide reach to establish its intrinsic merit — even local or regional projects may now satisfy the "national importance" factor. For example, a business endeavor that has significant potential to employ U.S. workers in an economically depressed area may qualify as nationally important.
  2. The foreign national is well-positioned to advance the proposed endeavor. USCIS will assess whether the applicant's education, skills, record of success, and model or plan for future activities put the applicant in a good position to succeed in the endeavor. Significantly, recognizing that "many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution," the AAO makes it clear that the petitioner is not required to show the endeavor is more likely than not to ultimately succeed. The petitioner is instead only required to show the foreign national is well-positioned — through education, record of past success, and the like — to execute the plan.
  3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
    For this final prong of the test, USCIS will consider such factors as whether it would be impractical for the foreign national to secure a job offer (such as in the case of an entrepreneur), whether the foreign national's potential contributions are of such value that they would benefit the U.S. even assuming qualified U.S. workers are available, or whether the national interest in the foreign national's contributions is "sufficiently urgent" to warrant forgoing the time-consuming PERM process.

The Dhanasar decision is an important new development that should broaden the availability of the national interest waiver to eligible foreign nationals. This provides employers with another useful tool to consider for permanent residence cases where a PERM may not be a viable option due to timing constraints, cost factors or other issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.