How to Meet the 3 Prong Requirements of Matter of Dhanasar for EB2 NIW Petitions

Question,

Please provide a guidance for how to meet the requirements of the 3 tests or prongs of the Matter of Dhanasar case, for EB2 National Interest Waiver petition?

Answer,

One of the most productive, often efficient ways to U.S. permanent residence, is through a National Interest Waiver (EB2 NIW), under which a foreign national can receive U.S. permanent residence by showing that his or her employment will serve to the U.S. national benefits. There are two immense advantages to the EB2 NIW immigration category: 

1) a foreign national can self-petition for U.S. permanent residence, rather than having to be sponsored by an U.S. employer;

2) the NIW petition submission is made directly to USCIS (U.S. Citizenship and Immigration Services), thereby avoiding entirely the recruitment and advertising requirements of the labor certification application process through the Department of Labor. 

However, over years, despite the advantages of the National Interest Waiver petition, USCIS immigration examiners have operated under somewhat vague guidance of precedential NYSDOT case, on the adjudication standards for National Interest Waiver petitions. The precedential EB2 National Interest Waiver case of Matter of Dhanasar (AAO, December 2016) provides a more flexible analysis that may benefit many petitioners.

For the case of Matter of Dhanasar, regarding the first prong of showing "substantial merit and national importance", the USCIS Administrative Appeals Office (AAO) noted that the alien beneficiary’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. It held that the petitioner is not required to show that the alien beneficiary has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for United States. 

Regarding whether the proposed endeavor has national significance, the AAO focused on potential prospective impact. It clearly stated that this impact is not to be evaluated solely geographically, but on a broader scale. 

Regarding the second prong of the Matter of Dhanasar case, in determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to: 

the individual’s education, skills, knowledge, record of success in similar areas;

a plan for the future;

progress made in achieving the proposed endeavor;

the interest of other related parties, such as users, customers, or investors.

The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields. 

Regarding the third prong of the Matter of Dhanasar case, the AAO listed the following factors that may be considered in showing that "on balance it benefits the U.S. to waive the requirements of a job offer and labor certification": 

in light of the foreign national’s background;

whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf;

whether it would still benefit the U.S. even if other qualified U.S. workers are available; and

whether U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification.

It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.  

The third prong is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. 

This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved EB2 National Interest Waiver petition.

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