On December 27, 2016, the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) issued new guidelines for adjudicating National Interest Waiver (NIW) cases in a decision known as the Matter of Dhanasar. This new standard replaces the previous guidelines decided in Matter of New York State Department of Transportation, more commonly referred to as NYSDOT, and serves to make the adjudication of NIWs clearer and less ambiguous.
In Dhanasar, the beneficiary was an aerospace engineer with two masters of science degrees in mechanical engineering and applied physics, on top of a Ph.D. in engineering from North Carolina A&T. The petitioner worked at the university as a postdoctoral research associate. His original NIW petition was denied by USCIS, so he opted to appeal the decision, which is why his case was reviewed by the AAO (more about your options for appealing an NIW decision can be found here).
AAO ended up overturning the original USCIS decision and determined that the petitioner was eligible for an NIW because his proposed endeavor had both “substantial merit” and “national importance.”
As AAO described, the petitioner had effectively demonstrated his proposed endeavour by asserting his intention to continue working on propulsion systems for military and civilian purposes, such as nano-satellites, which allows the United States to maintain its advantage over other nations in the field of hypersonic flight while advancing scientific knowledge and furthering the country’s competitiveness in the civil space sector.
Further, in AAO’s view, the petitioner was clearly well-positioned to advance national interests through his proposed endeavor because he had multiple graduate degrees; experience with research relevant to the U.S. Department of Defense; U.S. government investment in his research; and participation in projects funded by NASA and other agencies.
AAO ultimately determined that waiving the labor certification requirement would be in the nation’s interests because the evidence submitted showed that the combination of the petitioner’s education and experience in a highly-specialized field had significant implications on U.S. national security and competitiveness. In other words, the petitioner’s contributions were of such high value that it would benefit the U.S. to waive labor certification, even if other qualified U.S. workers were available.
These three determinations are the basis for the three-prong test that now governs the NIW process. Like the petitioner had done in Dhanasar, all NIW petitions must now establish:
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.
If a petitioner satisfies the above criteria and meets all other NIW requirements, then NIW approval is merited. You can review all NIW requirements here.
Dhanasar vs. NYSDOT
The Dhanasar decision replaces the longstanding NYSDOT decision, which had been in place for 18 years. The NYSDOT decision originally established the three-prong test for deciding NIW cases, and as you can see above, this format is still in use today. You can view more details on the relationship between Dhanasar and NYSDOT here.
Because this ruling is so new, our firm has not yet received many decisions based on the new guidelines. USCIS requests for evidence or denial notices on cases for which the new Dhanasar decision applies contain explanations from USCIS officers that will help us understand how they are interpreting and implementing the new guidelines. We’ll post and elaborate on new information concerning the new guidelines and their interpretation by USCIS here and here.
The NIW process is complex and, at times, a bit convoluted. We recommend that you seek the assistance of experienced immigration attorneys. Over the past two decades, we have successfully represented thousands of clients in their NIW cases. If you would like to contact us, please call us at (713) 771-8433 or visit us at one of our seven locations. You can also send us an e-mail at firstname.lastname@example.org. Our superior attorneys will ensure that you receive only the highest quality of service.
Read the USCIS ruling (Matter of Dhanasar) governing NIW here. And for more detailed information about the National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page: