A foreign national may apply for lawful permanent residence status (green card), and seek a waiver of the job offer and labor certification requirements, by establishing that his or her admission to permanent residence would be in the National Interest. The advantage of this classification is that it is more flexible than the EB-1 Outstanding Researcher or Professor category in terms of evidence that can be offered; additionally, it permits self-sponsorship, meaning that employer sponsorship is not required.
There is no regulatory or statutory standard as to what will qualify a foreign national for a National Interest Waiver. The USCIS considers each case on an individual basis. But recent case law sets forth the legal test to be applied by USCIS in making determinations. Matter of Dhanasar provides USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:
- The foreign national’s proposed endeavor has both substantial merit and national importance,
- The foreign national is well positioned to advance the proposed endeavor, and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Requiring substantial merit and national importance (prong #1 above) focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. The decision provided the examples of endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
To determine whether the proposed endeavor has national importance, the decision stated that CIS will consider its potential prospective impact. An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from medical advances. The decision states CIS will “not evaluate a 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.”
Requiring that the foreign national demonstrate that he or she is well positioned to advance the proposed endeavor (prong #2 above), shifts the focus away from the proposed endeavor and onto the foreign national. The Dhanasar decision stated that CIS will consider factors including, but not limited to, the petitioner’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. In recognition of the challenges presented in attempting to forecast feasibility or future success, the decision stated that petitioners will not be required to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
Dhanasar requires a demonstration that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification (Prong #3 above). The decision recognizes the intent of Congress to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. But, on the other hand, Congress also created the NIW in recognition of the fact that in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest. These two interests need be balanced within the context of individual NIW adjudications.
The decision stated that this analysis requires an evaluation of 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; whether, even assuming that other qualified U.S. workers are available, the U.S. 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. The decision emphasized that, in each case, the factors considered “must, taken together, indicate 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.” The decision noted that this prong, unlike the prior case law, “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.”
The Dhanasar decision requires the subjective determinations of USCIS adjudicators and accordingly, great care still needs to go into assembling a NIW petition. But this precedent decision opens the door to lawful permanent residence for individuals involved in a wide range of endeavors.