Employment-based Green Card applications generally require sponsorship from a U.S. employer which includes an offer of permanent employment in the United States. Also, some require additional certification from the U.S. Department of Labor (DOL) through a Labor Certification process which itself can take anywhere from 6 to over 18 months. However, as of December 2016, this is no longer true.
The EB-2 National Interest Waiver (EB-2 NIW) category provides an exception to both requirements, offering a significantly quicker process for qualifying foreign nationals with advanced degrees to obtain permanent residence in the U.S. For almost two decades since a 1998 USCIS Administrative Appeals Office (AAO) decision (Matter of New York State Dep’t of Transportation) meeting the criteria for the NIW has been very difficult to achieve under a highly subjective and often confusing 1998 analytical framework. This new December 2016 AAO decision (Matter of Dhanasar) creates a less subjective three-prong test for those seeking permanent residence in the United States under this category.
This new decision has now given us a three prong relatively clear criterion to meet the National Interest Waiver standard of “In the National Interest” or “National in Scope.” Quoting from the decision,
- “The foreign national’s proposed endeavor has both substantial merit and national importance.”2. “The foreign national is well positioned to advance the proposed endeavor.”
3. “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 these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion. Let’s examine some examples taken from the decision itself, to wit:
- The first prong can be met by showing that the foreign national’s work has national or even global implications within a particular field. For example, an entrepreneur applying for a NIW might be involved with, “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, and this may well be understood to have national importance,”
- The second prong puts the emphasis on the foreign national to prove that he/she has the “education, skills, knowledge and record of success in related or similar efforts; progress towards achieving the proposed endeavor; and the interest of potential users, investors, or other relevant entities or individuals.”
- The third prong represents a major change from the old criteria. The foreign national is being asked to demonstrate 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.” One means for USCIS to weigh this might be “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 a petitioner to obtain a labor certification.” This new and more flexible criteria could allow, for example, that for an entrepreneur, it would be impractical to do a labor certification, as they own the company.
This decision is far reaching and it is now far more flexible going forward to qualify for the EB-2, National Interest Waivers than it has been in the past.