Immigration and firm news

New National Interest Waiver Case Overturns NYSDOT

At the Seattle, Washington Law Office of Bonnie Stern Wasser, we enjoy working on National Interest Waiver (NIW) EB-2 permanent resident cases. NIW means the government will waive the usual requirement that there be a US employer and job offer, and a labor market test for willing, qualified and able US workers through the labor certification or “PERM” process. Although a US employer and job offer is not required in a NIW EB-2 case, the applicant must show he/she has offers of work in the US in the field of endeavor at issue. One cannot simply meet the criteria but not plan to work in the field of endeavor. Applicants may be petitioned by an employer or they may self-petition. In December 2016, the Administrative Appeals Office issued a new decision, Matter of Dhanasar 26 I&N Dec. 884 (AAO 12/27/16) overruling the 1998 decision of NY Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) or “NYSDOT.”

Congress never specified what the requirements are to meet the NIW standard, and USCIS and the former INS never implemented regulations to define NIW requirements. But, in 1998, the AAO decided NYSDOT holding the following three-part test required to waive PERM in NIW cases:

  1. The field of endeavor or proposed work must be of “intrinsic merit.” Note, NIW cases are for work in the sciences, business and arts. Most fields of endeavor in these industries were construed rather broadly.
  2. Second, the work must be national in scope. This can be tricky where the work to be performed is strictly local or will have just local impact. NYSDOT focused more on the geographic impact.
  3. The third and hardest prong of the NYSDOT test was to show that it is in the national interest to waive the labor market test (labor certification or PERM). Stated otherwise, one had to show it is not in the national interest to require PERM because the applicant provides a “significant benefit to the field of endeavor”; or has a “past history of demonstrable achievement with some degree of influence on the field as a whole;” and the applicant is likely to “serve the national interest to a greater extent than others with the same level of education, training and/or experience.”  In sum, the applicant’s past impact on the field of endeavor should be highly predictive of future impact, and that had to be shown by comparing the applicant’s credentials and achievements to others with similar education and experience.

In Matter of Dhanasar the AAO set forth a new three-part test and overruled NYSDOT. The new standards for waiving PERM require the applicant/petitioner to show the following:

  1. The work has substantial merit AND is of “national importance.” This can be shown by a range of options such as the field of endeavor and the applicant’s future work has or will have economic impact; but national impact is not required in the NYSDOT geographic sense. Instead, the focus is on national importance, which can have a prospective, broader impact, but need not be geographically broad.
  2. The applicant must be “well positioned to advance the endeavor.” This can be shown through a variety of factors, but the focus is on the applicant having some kind of key role or leadership position that will cause the impact to be national in scope and importance.
  3. Finally, “on balance,” waiving PERM would benefit the USA. The factors to consider need not in themselves show harm to the national interest or a comparison to US workers as was required in NYSDOT.

Here is a comparison of the two cases:

Field of intrinsic merit Intrinsic merit & national importance
Geographic national in scope Broad impact (e.g., EB-5 regional center

analysis of job creation)

Demonstrated achievements

to predict future impact

Past work & FN’s role in advancing the

endeavor for future impact

Compare to US workers, if harm

to the national interest

Balancing, more like Kazarian final

merits review

Strategies for entrepreneurs:

Several years ago, USCIS announced that the NIW category should be used more by entrepreneurs in the absence of Congressional action to create more user friendly categories for entrepreneurs. The standard and quality of the evidence presented must meet the “preponderance of the evidence” burden of proof– it is more likely than not that the evidence is true.

Here are some NIW strategies for entrepreneurs:

  • The applicant should focus on her key role in the business to show she  is well positioned to advance the endeavor.
  • The applicant should show expansion of jobs or other economic benefits outside of the local geographic area (like an EB-5 investor Regional Center type showing of indirect job creation)
  • Submit a business plan and/or economic analysis, along with evidence of funding from VCs, grants, or other funding sources.
  • Applicants should weigh whether it is better to self-sponsor or have an employer entity with a well established reputation be the petitioner.
  • Applicants may discuss the limits of PERM (e.g., cannot self-petition, some entities, like universities, will not sponsor, cannot have family ownership, or substantial business ownership, for labor certification, etc.)
  • Applicants should focus on how interesting, novel or compelling the business product or service is and its future impact as well as current interest or contracts for the product/service.
  • In this office, we also like to creatively draw on the “other comparable evidence” criterion found in the EB-1/EB-2 crème de la crème cases.

Two types of NIW cases.

Don’t forget that there are two types of NIW cases: individuals with at least advanced degrees (masters or higher depending upon the field) OR those who are of “exceptional ability.” Both categories can use the NIW test above to waive the PERM requirement. (There is also a third category for physicians who agree to work in underserved areas, but we save that category discussion for another day.)

A person is of exceptional ability if the applicant can prove “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” This standard would be in addition to the NIW three part test above. To prove exceptional ability, the applicant must show at least three of the following criteria:

  • Academic records related to the field of exceptional ability
  • At least 10 years of full time experience in the occupation for which the foreign national is being sought
  • License to practice the profession if required
  • Salary/remuneration demonstrating exceptional ability
  • Membership in professional associations
  • Recognition for achievements and significant contributions to the industry or field
  •  Other comparable evidence

For entrepreneurs,  some years back, USCIS came out with FAQs suggesting that job creation beyond the self-petitioner’s own business might be considered:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.  For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

More about the third Dhanasar “on balance” prong:

In its analysis of exceptional ability, USCIS does a controversial two-step analysis based on a 9th Circuit Court of Appeals case, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). (By controversial, I mean the legal community disagrees with USCIS’ interpretation of the court’s ruling in Kazarian.) First, USCIS looks to see if the applicant has provided credible evidence to meet the “preponderance of the evidence” standard showing at least three of the criteria above. Even if the applicant has met these criteria, USCIS then looks at the case as a whole to determine whether overall, the person has shown he or she has the requisite “degree of expertise significantly above that ordinarily encountered.” This same two-step analysis is also performed by USCIS in the EB-1 Extraordinary ability and Outstanding Researcher categories. It’s possible a Kazarian type analysis is done again when looking at the NIW third prong above when deciding whether “on balance” waiving PERM in the particular case is in the national interest.

Who should apply for EB-2 NIW cases?

The EB-2 NIW category is especially good for those accomplished individuals in the arts, sciences and business who do not have traditional work arrangements, who do not have employers willing or able to sponsor them, but they do have work lined up in the field of endeavor, and where the applicant has already impacted the field in some way, and has commitments for future work of a high caliber and influence, as well as a significant role in the entity or organization. However, caution should be exercised for some applicants, especially researchers, because the government adjudicators have an inherent bias against recent graduates and researchers still in their post-doc fellowship programs. Indeed, looking at the AAO cases, a lot of self-petitioned researcher cases have been denied because applicants are deemed to be still too early in their careers. While NYSDOT’s focus on past impact of some influence is gone, it is still relevant and important in these cases.  The applicant still needs to show evidence of significant accomplishments such that there is a strong likelihood of continuing to make an impact in the future.  It may be useful to highlight the broader range of people or businesses that have been impacted directly or indirectly by the applicant’s work and contributions.

These cases are very, very fact specific. In our experience, no two cases are alike. Therefore, potential applicants should consider meeting with an immigration attorney experienced in these types of applications to determine whether there is a significant chance of winning. These types of cases are a lot of work and can be expensive.  Furthermore, Requests for Evidence are common in the “reputation” green card categories. Winning an approved I-140 is possible with the right cases and facts. A NIW approval can shave off months of PERM processing time. On the other hand, they can take considerable time to prepare and deal with I140 processing times and RFEs. One needs to factor in processing times, green card quotas, and remaining length of time on nonimmigrant visas in determining when to file and whether to file a standalone I-140 petition or concurrent with adjustment of status. This is where an experienced immigration attorney can help develop a long term strategy and backup plans.