AAO Precedent Decision (Dhanasar) – Eases National Interest Waiver Requirements

The AAO Precedent Decision (Dhanasar) has created a new that should broaden the availability of the national interest waiver to eligible foreign nationals

To be eligible for an NIW under the new test, the applicant must meet all of the following criteria by a preponderance of the evidence for each of the 3 following factors:

  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. Key here is that, unlike the previous standard, the applicant need not show a harm to the national interest if a labor certification is not conducted. This more flexible test, which can be met in a range of ways … is meant to apply to a greater variety of individuals, such as entrepreneurs and self-employed individuals.
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