If you are interested in filing for residence but do not have an employer to petition for you, one possible alternative is filing a self-petition based on your work experience and achievements. Generally, there are two ways to self-petition for residence:
- The EB-11 Extraordinary Ability Petition
- The EB-2 National Interest Waiver (NIW) Petition
The Law Office of Kathryn N. Karam PC has assisted employees in the energy industry with NIW and EB-11 petitions, and published a blog about this topic last year. Although the blog was directed toward oil and gas employees, it is applicable to all fields.
The standard of review for EB-11 cases requires demonstrating that you at the top of your field and have sustained national or international acclaim. Since this can be difficult to meet, people interested in self-petitioning for residence often look to National Interest Waivers (NIW) as an alternative.
This year is starting off with good news for people interested in the NIW process: On December 27, 2016, the Administrative Appeals Office, an appellate body within U.S. Citizenship and Immigration Services (USCIS), issued a binding decision revising the standard it uses to evaluate and approve NIW petitions. The prior framework used to evaluate NIWs had been in effect since 1998.
What are National Interest Waivers?
U.S. immigration law makes immigrant visas available in the EB-2 category to professionals holding advanced degrees and those who have exceptional ability in the sciences, art, or business. Generally, these individuals must have a job offer in the U.S. and the employer making the offer must obtain a labor certification from the U.S. Department of Labor (DOL) to show that there are not sufficient able, willing, and qualified workers to fill the position and that the employment of the foreign individual will not adversely affect the wages and working conditions of similarly-employed U.S. workers (also known as PERM).
While this job offer and labor certification requirement was intended to protect U.S. workers, Congress recognized cases where the national interest in protecting domestic labor can be outweighed by other national interest factors. U.S. immigration law allows USCIS to waive the job offer and labor certification requirement where it is in the national interest, but did not define “national interest.”
The Old NYSDOT Test
In 1998, legacy Immigration and Naturalization Service (INS) issued the following three-pronged test for evaluating NIW petitions in Matter of New York State Dep’t of Transp (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998):
(1) the area of employment is of substantial intrinsic merit;
(2) the proposed benefit from the individual’s employment will be national in scope; and
(3) the national interest would be adversely affected if a labor certification were required for the foreign national.
While prongs one and two were relatively straightforward, prong three was problematic due to the fact that adjudicators often misinterpreted the test as requiring the petitioner to submit evidence relating to the very labor market test that the waiver was intended to forego.
Adjudicators also relied heavily on “influence on the field as a whole” as the primary yardstick against which petitions were measured, although that standard resided in a footnote in the NYSDOT decision and there are qualified individuals for whom past achievements are not necessarily the best or only predictor of future success.
The New Dhanasar Test
The new decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), replaced the three-part NYSDOT test with the aim of providing greater clarity and more flexibility to the circumstances of both petitioning employers and self-petitioning individuals. Specifically, under Dhanasar, the petitioner for a National Interest Waiver must demonstrate that:
(1) the foreign national’s proposed endeavor has both substantial merit and national
(2) the foreign national is well positioned to advance the proposed endeavor; and
(3) on balance, it would be beneficial to the United States to waive the requirements of a
job offer and thus a labor certification.
The Dhanasar decision changed several aspects of the standards by which NIW petitions are evaluated:
“National in Scope” is now “National Importance.” The “national in scope” requirement of NYSDOT has been modified to “national importance” to avoid overemphasis on the geographic breath of the foreign individual’s proposed endeavor.
Harm to national interest and comparison to U.S. workers is no longer required. Evidence of harm to the national interest and a comparison against U.S. workers in the field are no longer required. Instead, the focus is now on whether the foreign national is well positioned to advance the proposed endeavor (which refers to the work the foreign national intends to do in the United States or his/her future activities). Factors for USCIS to consider include, but are 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.
A demonstration that the foreign national’s endeavors are more likely than not to ultimately succeed is not required. Finally, in balancing U.S. national interest and the foreign national’s contributions to his/her field with foregoing the Labor Certification process that is intended to protect U.S. workers, USCIS may consider factors such as:
- 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 applicant to obtain a labor certification;
- Assuming other qualified U.S. workers are available, whether the United States would nonetheless benefit from the foreign national's contributions; and
- Whether the national interest in the foreign national's contributions is sufficiently urgent to warrant foregoing the labor certification process.
Dhanasar Decision Perceived as Favorable
Overall, the Dhanasar decision is perceived as a favorable change to the National Interest Waiver framework in that it recognizes a broader range of endeavors that contribute to national interest (including business, science, technology, culture, education and entrepreneurship) and opens the classification to self-employed individuals.
It also offers increased latitude in the justification of the foreign individual’s prospective benefit to the national interest as it looks beyond the individual’s past impact on his/her field to consider the interest of all relevant entities and any qualifications that makes him/her well-positioned to advance the proposed endeavor.
However, this is a newly-issued case, and it remains to be seen how USCIS officers will approach National Interest Waiver petitions under this new framework. The Law Office of Kathryn Karam will closely monitor cases adjudicated under the Dhanasar standard and provide updates as they become available. If you have any questions about your eligibility under the new standard, please contact our firm to schedule a consultation.