Yesterday, USCIS’ Administrative Appeals Office (“AAO”) released a new decision which substantially changed the test for National Interest Waivers that has been in place since 1998. In fact, the new decision vacated the old In re New York State Department of Transportation, 22 I&N Dec. 215 (AAO 1998).
In the new Matter of Dhanasar, 26 I & N Dec. 884 (AAO 2016) online here, the AAO created a new test for National Interest waiver:
That the foreign national’s proposed endeavor has both substantial merit and national importance;
That the foreign national is well positioned to advance the proposed endeavor; and
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.
(Dhanasar decision at p889)
This is a substantial change from the old New York State Department of Transportation (“NYSDOT”) decision which had controlled the test for this immigration benefit since its release in 1998.
Under the old test – also in three parts – the first prong here was essentially divided into two separate tests: that the area of employment was “in an area of substantial intrinsic merit” and that the benefit “will be national in scope, and will not merely benefit a locality or region.” Here, the word “intrinsic” has been removed from the former first prong with the AAO noting that the term “adds little to the analysis” but “is susceptible to unnecessary subjective evaluation.” (decision at p887). The former second prong has been shortened to “national importance” – also because the AAO felt that the test had been “construed too narrowly” (Id.)
The new Dhanasar test introduces in the second prong an inquiry into the foreign national’s background that technically didn’t exist before – however, in most cases the foreign national would have needed to be “well positioned to advance the proposed endeavor” in order to meet the “exceptional ability” tests – it would always have been rare to file this type of case for someone not well qualified to do the job. Therefore, this new requirement is unlikely to make it tougher to meet the requirements for a national interest waiver.
The big change is in the third prong of the test: where before we had to prove that “The national interest of the U.S. would be adversely affected if a labor certification were required,” now we need only prove 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.” The AAO made the point that the old test was extremely difficult to interpret – in fact, it had been stated at least three different ways even within the NYSDOT AAO decision. (Id.) The AAO noted the difficulty under the old test in determining exactly how the national interests of the US would be impacted if labor certification were required in the absence of the labor market test that the national interest waiver seeks to avoid.
Although we have yet to see how USCIS implements the new decision in the adjudications process, the Dhanasar decision is likely to be a very positive development in this time of great uncertainty with regard to the prospects for employment-based immigration.