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National Interest Waivers

A National Interest Waiver (NIW) is a green card category contained within the EB-2 (employment based) category. NIWs, like the EB-1 categories (extraordinary ability, outstanding researchers and professors, and multinational managers), do not require a foreign national to complete the difficult Labor Certification process.

The Department of Homeland Security (DHS) recently improved and clarified the standards for a National Interest Waiver. These new standards were set forth in a decision from the administrative appeals office of the Department of Homeland Security, titled “Matter of Dhanasar.”

The new standards for a National Interest Waiver are:

  1. that the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. that the foreign national is well positioned to advance the proposed endeavor; and
  3. 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

The “substantial merit” component of the first criteria is relatively broad and can include entrepreneurialism as well as substantial merit in the fields of business, science, technology, culture, health or education. The “national importance” prong was broadened somewhat in that even areas that have a more limited geographic focus may be deemed of national importance if there are broader, national implications to the endeavor.

The second prong switches the inquiry to the foreign national. Dhanasar lays out the new framework for this criteria:

To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’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. (Matter of Dhanasar, pg. 890)

The third prong focuses on the reason for waiving the Labor Certification requirement. USCIS looks at the following factors:

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 United States 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. (Matter of Dhanasar, pg. 890 -891)

Individuals with skills that cannot be easily articulated in a Labor Certification application may also meet this prong, as well as entrepreneurs, since an entrepreneur is generally ineligible for a Labor Certification if they have a substantial ownership interest in the company.

In summary, the new standards implemented by Dhanasar explicitly broaden eligibility for National Interest Waivers and ostensibly bring successful entrepreneurs within its folds; however, whether USCIS adjudicators in an increasingly immigrant hostile Trump administration will faithfully apply these broader standards is a still an open question.


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