National Interest Waiver Receives New Adjudication Test

The Administrative Appeals Office issued a landmark decision today, overturning the old standard of adjudication for national interest waiver petitions, and replacing it with a legal test that on first blush seems more permissive.  The decision is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which expressly vacates the longstanding Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The Department of Homeland Security has designated the decision as a precedent, to be followed by adjudicators.

As per the Dhanasar decision, USCIS may now 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 requirement of a job offer and thus of a labor certification.

The Administrative Appeals Office clearly wanted to move away from requiring petitioners to establish geographic national benefit. The decision notes that the old standard restated requirements, creating more confusion with each restatement, for petitioners and adjudicators alike. I have to agree, and it is refreshing to see the Administrative Appeals Office take such a candid review of its own decision. Over the years, we’ve had to evaluate the likelihood of success for these cases based on adjudication trends, which have varied quite a bit over time.

The new standard presents its own evidentiary challenges.  How will the agency decide if work will be of “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 national defense.  Further, Dhanasar will work at a University, where they will be able to disseminate their research, and rather easily meet the second prong concerning being well positioned to advance the proposed endeavor.  The AAO chose a case which is easy to approve on the facts, based on the revised tests. We’ll have to see how adjudicators apply these new standards in less obvious cases.

The clear statement of the new 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. The decision notes that the new test will be more accommodating for self-employed individuals and entrepreneurs.

Still, I don’t think the gates have opened wide. The key adjudication standards- “both substantial merit and national importance,” “well-positioned,” and “beneficial to the U.S. to waive the requirement” – leave much to interpretation, case-by-case. No doubt, this is intentional on the AAO’s part, who seem to focus on not excluding certain worthy candidates, which would happen with  NYSDOT‘s flawed construction. The key beneficiaries of this decision may be the self-employed, and those in higher educated professions with traditionally localized focuses, such as certain physicians, engineers, architects, and the like.