USCIS has resumed the processing of EB-2 Waiver of the Labor Certification Requirement in the National Interest (EB-2 NIW) cases affected by the Matter of Dhanasar precedent decision. EB-2 NIW case processing was temporarily on hold pending guidance and training of USCIS staff.
On December 27, 2016, the USCIS Administrative Appeals Office (AAO) announced in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) a new analytical framework for determining whether a foreign national pursuing employment-based permanent residence in the EB-2 category as a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business is eligible for a discretionary waiver of the job offer and labor certification requirements in the U.S. national interest – a “National Interest Waiver” (NIW). See, 8 CFR §204.5(k)(4).
Matter of Dhanasar vacates the framework set forth in Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) and appears to make NIWs more easily available to foreign nationals pursuing endeavors that would benefit the United States, including entrepreneurs and the self-employed.
Under the new test, in order to be granted an NIW, an EB-2 petitioner – either the foreign national or an employer – must meet all of the following criteria, under the preponderance of evidence (“more likely than not”) standard:
- The foreign national’s proposed endeavor has both substantial merit and national importance. A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health, and education.
- The foreign national is well-positioned to advance the proposed endeavor. To determine whether the foreign national meets this requirement, USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals.
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category. To meet this requirement, USCIS will consider (among other factors) whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process.
The AAO noted that the petitioner must also show that a favorable exercise of discretion is warranted. In addition, the beneficiary must qualify as a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business (see 8 CFR §204.5(k)(1)-(3)).
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