AAO Sets Forth New Standard For Granting Of National Interest Waiver, Vacates Matter of New York State Department Of Transportation, 22 I&N Dec. 215 (Acting Associate Commissioner, 1998).

On December 27, 2016, the Administrative Appeals Office (AAO) revisited the analytical framework for assessing national interest waiver (NIW) eligibility via the appeal of a Texas Service Center denial of both a self-petitioned I-140 immigrant visa petition seeking to classify the Petitioner as a member of the professions holding an advanced degree and the accompanying NIW. Initially, in discussing the legal background of the waiver, the opinion explained how a petitioner must first prove that the beneficiary qualifies under the Employment-Based 2nd preference (EB-2) as either a professional with an advanced degree or an individual of exceptional ability, then show that it is in the interest of the U.S. to waive the job offer (labor certification) requirement. However, the AAO noted the term “national interest” is ambiguous, undefined by statute or regulation, i.e., “a broad concept subject to various interpretations”.

The decision found that while the current legal paradigm for evaluating national interest is established by the precedent decision, Matter of New York State Dep’t of Transp., 22 I&B Dec. 215 (Acting Assoc. Comm’r 1998)(“NYSDOT”), the intervening period has led the AAO to find that it is now time for a reassessment. Essentially holding that the 3rd of NYSDOT’s 3 prongs – the requirement that the petitioner “demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national” – is too confusing a standard for  all parties, the AAO stated that this prong can be misinterpreted to require evidence of “the very labor market test the waiver is intended to forgo” and is therefore unworkable when petitions with NIWs are submitted by self-employed individuals like entrepreneurs. Additionally, held the AAO, the harm-to-national-interest concept unnecessarily limits USCIS’ broad discretionary authority to grant an NIW. As such, NYSDOT was vacated.

Thus, under the AAO’s new framework, once EB-2 eligibility is confirmed, the NIW may be granted if the petitioner proves by a preponderance of the evidence 1) that the beneficiary’s proposed endeavor has both substantial merit and national importance; 2) that the individual is well-positioned to advance the endeavor; and, 3) that, on balance, it would be beneficial to the U.S. to waive the job offer requirement, The decision expressly noted that this last prong “ does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” The opinion then held that the instant petitioner met the new test, sustained the appeal, and approved the petition. Matter of Dhanasar, 26 I&N Dec.  884 (AA) 2016).

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