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In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), USCIS announced a new analytical framework for adjudicating National Interest Waivers (“NIW”), explicitly overturning the controlling framework laid out in Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) (Matter of NYSDOT).

Under the new framework, an applicant seeking a NIW must show the following:

(1) 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. USCIS will consider factors including, but not limited to: education, skills, knowledge and record of success in related or similar efforts.

(3) Waiving the requirements for a job offer and labor certification would benefit the U.S. (even if there are US workers available to do such work). This is particularly noteworthy because a job offer previously was required for a foreign national to proceed with a NIW.

By way of background, professionals holding an advanced degree or persons of exceptional ability may apply for lawful permanent residence under the Employment Based-2 category (“EB-2”). Immigrant visas under this category typically are available to applicants only if a sponsoring employer tests the labor market and can show that there are no qualified, able or willing US citizens available to fill the position. The NIW waives the requirement to test the labor market and Matter of Dhanasar now confirms that a sponsoring employer is not necessary for an applicant to request a NIW.

While the Dhanasar decision is optimistic about the revised framework’s flexibility and wider applicability, it remains to be seen whether there will be a significant change in USCIS adjudications of petitions requesting NIW or whether seeking classification as an individual of extraordinary ability under the EB-1 category remains the more viable option for pursuing permanent residence. Certainly, for Indian and Chinese nationals who will face priority date backlogs in the EB-2 category, the EB-1 category may be more worthwhile.

For more information regarding the National Interest Waiver and its applicability to your facts, please contact SW Law Group.