Immigrant visas under the EB-2 category are available to qualified immigrants who are professionals holding advanced degrees or their equivalent or because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests or the United States. Unless waived, the foreign national must be employed by a U.S. employer and have a U.S. job offer and have met the labor certification requirement that demonstrates that the Department of Labor has determined that there are not sufficient workers who are willing, qualified, and available.

The decision in Matter of Dhanasar establishes a new legal framework for the National Interest Waiver. Under the new National Interest Waiver framework, USCIS may, in its discretion, grant a national interest waiver if the petitioner establishes by a preponderance of the evidence 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 it would be beneficial for the U.S. to waive the requirements of a job offer and labor certification

Under the first criteria, proposed endeavor has national importance, the Dhanasar Court decided to consider and assess endeavors in terms of “national importance” rather than “national in scope”. For the second criteria, the Court focused on whether the foreign national is well positioned to advance the proposed endeavor. Under the third criteria, the petitioner must demonstrate that it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

The old National Interest Waiver framework was issued in the 1998 decision Matter of New York State Department of Transportation (NYSDOT). Under NYSDOT framework, a petitioner must show that the area of employment is of “substantial intrinsic merit”, any proposed benefit of the individual’s endeavors will be national in scope and the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

Matter of Dhanasar has modernized the National Interest Waiver framework under NYSDOT. I think we will see that the new National Interest Waiver is more applicable for the foreign national professionals, industries and technology of today.

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