Matter of DHANASAR – New Rules for NIW

On December 27, 2016, Administrative Appeals Office (AAO) issued new precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

This decision replaces the previous precedent case NYSDOT and establishes a new framework for evaluating National Interest Waiver petitions.

In this post, I pull out all details, compare both cases and show what has changed.

Note: text in italics is an exact quotation from the official source.

New National Interest Waiver Requirements

Following 3 requirements were established in Dhanasar case.

USCIS may 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 job offer and labor certification requirements.

This should sound familiar if you know previous requirements. Rules seem similar but reorganized. What is different? Let’s dig deeper…

Recapitulation and Subjects to Change

At first, Matter of Dhanasar includes a recapitulation of legal background.

Explanation of labor certification process is provided. This way U.S. employer might apply for a green card for his potential foreign worker.

Labor certification is also discussed in the National Interest Waiver thus make sure you understand how it works.

Before hiring a foreign national under this immigrant classification, an employer must first obtain a permanent labor certification from the United States Department of Labor (“DOL”). A labor certification demonstrates that DOL has determined that there are not sufficient workers who are able, willing, qualified, and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

In its labor certification application, the employer must list the position’s job requirements consistent with what is normally required for the occupation. Moreover, the job requirements described on the labor certification application must represent the actual minimum requirements for the job opportunity. That is, the employer may not tailor the position requirements to the foreign worker’s qualifications; it may only list the position’s minimum requirements, regardless of the foreign worker’s additional skills that go beyond what is normally required for the occupation.

The employer must then test the labor market to determine if able, willing, or qualified U.S. workers are available with the advertised minimum qualifications. If such U.S. workers are found, the employer may not hire the foreign worker for the position, even if the foreign worker clearly has more skills (beyond the advertised qualifications). If the employer does not identify such U.S. workers and DOL determines that those workers are indeed unavailable, DOL will certify the labor certification. After securing the DOL-approved labor certification, the employer may then file a petition with DHS requesting the immigrant classification.

Then Dhanasar decision summarizes the second option of the green card application – National Interest Waiver (avoids labor certification, no need of U.S. employer). Old requirements established by previous precedent case NYSDOT are listed and changes are proposed.

The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of substantial intrinsic merit.

AAO admits that the term “intrinsic” adds little to the analysis yet is susceptible to unnecessary subjective evaluation. Intrinsic value is an inherently subjective and speculative concept.

This doesn’t seem like a big change…

Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be national in scope.

In this second prong the term “national in scope” is construed too narrowly by focusing primarily on the geographic impact of the benefit. Certain locally or regionally focused endeavors may be of national importance despite being difficult to quantify with respect to geographic scope.

This seems to be more significant. Some lawyers speak about new opportunities for entrepreneurs or workers in local companies.

The third prong is explained in several different ways within NYSDOT itself, leaving the reader uncertain what ultimately is the relevant inquiry.

This third prong requires a petitioner to:

• demonstrate that the national interest would be adversely affected if a labor certification were required
• demonstrate that the individual presents a national benefit so great as to outweigh the national interest inherent in the labor certification process
• establish that the individual will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications
• clearly establish that the alien’s past record justifies projections of future benefit to the national interest

Last statement included also a footnote: USCIS seeks a past history of demonstrable achievement with some degree of influence on the field as a whole. While this “influence” standard rests upon the reasonable notion that past success will often predict future benefit, our adjudication experience in the years since NYSDOT has revealed that there are some talented individuals for whom past achievements are not necessarily the best or only predictor of future success. Although, this “influence” standard has in practice become the primary yardstick against which petitions are measured.

If you know our case, we didn’t stick heavily on numbers like publications and citations simply because it wasn’t impressive. We had to find different arguments and we succeeded even without the significant number of publications and citations.

Third prong can be misinterpreted to require the petitioner to submit … evidence relevant to the very labor market test that the waiver is intended to forego.

The first statement (national interest would be adversely affected if a labor certification were required) implies that petitioners should submit evidence of harm to the national interest.

The third statement (individual will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications) suggests that petitioners should submit evidence comparing foreign nationals to unidentified U.S. workers.

These concepts have proven to be difficult for many qualified individuals to establish or analyze in the abstract. It has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.

Lastly, this concept of harm-to-national-interest is not required by, and unnecessarily narrows, the Secretary’s broad discretionary authority to grant a waiver when he “deems it to be in the national interest.”

This third prong was originally the most confusing and Dhanasar precedent should address this rule more clearly.

Let’s see how the new rules are defined.

New Analytical Framework

Before we jump into the rules here is one note. USCIS will adjudicate if the petitioner demonstrates … by a preponderance of the evidence…

Under the “preponderance of the evidence” standard, a petitioner must establish that he or she more likely than not satisfies the qualifying elements. We will consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence.

Let’s analyze the new requirements now.

1. Substantial Merit and National Importance

The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.

Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.

But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

This new first prong seems to be similar to the old first (substantial intrinsic merit) and second prong (national in scope) together without the focus on geographic boundaries of the applicant’s work.

2. Well Positioned to Advance the Proposed Endeavor

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

This new second prong was previously included in the old third prong, within the original statement: alien’s past record justifies projections of future benefit to the national interest.

3. Benefits to the United States

In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.

For example, the labor certification process may prevent a petitioning employer from hiring a foreign national with unique knowledge or skills that are not easily articulated in a labor certification.

As explained at the beginning of this blog post, only minimum requirements for particular job offer are considered when applying through labor certification process. Worker’s unique skills beyond these minimum requirements may not be taken into account.

Likewise, because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer.

USCIS may also evaluate following factors: whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.

NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.

Similar rules were present in the old third prong but instead of demonstrating harm to national interest it is required to show significant benefits. This new prong might be also easier to satisfy for entrepreneurs and self-employed individuals.

Dhanasar Case Analysis

Petitioner is a researcher developing air and space propulsion systems and teaching aerospace engineering at a university. He holds two master of science degrees (mechanical engineering and applied physics) and Ph.D. (engineering). Thus he qualified for an advanced degree classification under EB-2 category (203(b)(2)(A)).

Submitted evidence includes:

• reliable evidence of the petitioner’s credentials
• copies of his publications and other published materials that cite his work
• evidence of his membership in professional associations
• documentation regarding his research and teaching activities
• letters from individuals who establish their own expertise in aerospace, describe the petitioner’s research in detail and attest to his expertise in the field of hypersonic propulsion systems

1. Substantial Merit and National Importance

The petitioner demonstrated that he intends to continue research into the design and development of propulsion systems for potential use in military and civilian technologies such as nano-satellites, rocket-propelled ballistic missiles, and single-stage-to-orbit vehicles.

In letters supporting the petition, he describes how research in this area enhances our national security and defense by allowing the United States to maintain its advantage over other nations in the field of hypersonic flight. We find that this proposed research has substantial merit because it aims to advance scientific knowledge and further national security interests and U.S. competitiveness in the civil space sector.

The record further demonstrates that the petitioner’s proposed endeavor is of national importance. The petitioner submitted probative expert letters from individuals holding senior positions in academia, government, and industry that describe the importance of hypersonic propulsion research as it relates to U.S. strategic interests.

He also provided media articles and other evidence documenting the interest of the House Committee on Armed Services in the development of hypersonic technologies and discussing the potential significance of U.S. advances in this area of research and development.

The letters and the media articles discuss efforts and advances that other countries are currently making in the area of hypersonic propulsion systems and the strategic importance of U.S. advancement in researching and developing these technologies for use in missiles, satellites, and aircraft.

2. Well Positioned to Advance the Proposed Endeavor

Beyond his multiple graduate degrees in relevant fields, the petitioner has experience conducting research and developing computational models that support the mission of the United States Department of Defense (“DOD”) to develop air superiority and protection capabilities of U.S. military forces, and that assist in the development of platforms for Earth observation and interplanetary exploration.

The petitioner submitted detailed expert letters describing U.S. Government interest and investment in his research, and the record includes documentation that the petitioner played a significant role in projects funded by grants from the National Aeronautics and Space Administration (“NASA”) and the Air Force Research Laboratories (“AFRL”) within DOD. Thus, the significance of the petitioner’s research in his field is corroborated by evidence of peer and government interest in his research, as well as by consistent government funding of the petitioner’s research projects.

The petitioner’s education, experience, and expertise in his field, the significance of his role in research projects, as well as the sustained interest of and funding from government entities such as NASA and AFRL, position him well to continue to advance his proposed endeavor of hypersonic technology research.

3. Benefits to the United States

The petitioner holds three graduate degrees in fields tied to the proposed endeavor, and the record demonstrates that he possesses considerable experience and expertise in a highly specialized field. The evidence also shows that research on hypersonic propulsion holds significant implications for U.S. national security and competitiveness.

In addition, the repeated funding of research in which the petitioner played a key role indicates that government agencies, including NASA and the DOD, have found his work on this topic to be promising and useful. Because of his record of successful research in an area that furthers U.S. interests, we find that this petitioner offers contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available.

There is one more note regarding applicant’s teaching activities.

The petitioner proposes to support teaching activities in science, technology, engineering, and math (“STEM”) disciplines. He submits letters favorably attesting to his teaching abilities at the university level and evidence of his participation in mentorship programs for middle school students. While STEM teaching has substantial merit in relation to U.S. educational interests, the record does not indicate by a preponderance of the evidence that the petitioner would be engaged in activities that would impact the field of STEM education more broadly. Accordingly, as the petitioner has not established by a preponderance of the evidence that his proposed teaching activities meet the “national importance” element of the first prong of the new framework, we do not address the remaining prongs in relation to the petitioner’s teaching activities.

This case was originally denied and later, after appeal, AAO approved it. This decision serves as a new analytical framework for adjudicating NIW cases.

Summary

Dhanasar precedent decision shows that new requirements are similar to the old ones, but they are more clear now. Unlike the previous precedent case, each prong has now “the main focus”.

Original first two prongs were compiled together and became the first prong now. “National in scope” has changed to “national importance” and strict focus on the geographic scope was removed. This may open new opportunities for certain applicants who had difficulties to satisfy this requirement in the past (for example entrepreneurs or workers in a local company).

The old third prong was divided to the second and third new prong. It is not a multiple-definition confusing requirement anymore.

In the new second prong, the applicant must show his past record of achievements and his great position to advance the proposed endeavor. This was originally a part of the old third prong.

The greatest change in the new third prong is omitting the requirement of showing harm to national interest if applicant’s petition is denied. The new prong requires showing significant benefits to the United States. The third prong also more clearly address entrepreneurs (it would be impractical for them to secure a job offer from U.S. employer).

The precedent decision seems to lower the standard slightly. It should be easier for certain applicants to satisfy the rules. It is now more clear what to focus on.

We provide more details about NIW requirements in our NIW ebook. We reflected these changes also in our NIW DIY kit. Clients who purchased the kit or e-book in the last 12 months were already contacted and we provided this update for free. If you are our client and didn’t hear from us, please contact us and request a new download link (proof of purchase needed).