On Oct 07 2022 by Allie K. Dempsey

National Interest Waivers: Current State of Play

In employment-based immigration, most paths to a green card require a labor market test through the labor certification (or PERM) process. National Interest Waivers (NIWs) provide an important exception to this rule. NIWs allow advanced degree professionals and individuals with demonstrated exceptional ability in the sciences, arts, or business to bypass the labor certification process and secure U.S. permanent residence even in the absence of a job offer. Individuals can benefit from NIW classification through sponsorship by an employer or self-sponsorship, as long as they can demonstrate that their endeavors and contributions are “in the national interest” of the United States.

In 2016, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) published a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which introduced a new framework to determine eligibility for National Interest Waivers. The Dhanasar standard was intended to provide greater clarity and allow for increased flexibility in establishing eligibility for an NIW, for the ultimate benefit of U.S. national interests. Under this framework, an NIW may be granted if the petitioner establishes that: (1) the proposed endeavor has substantial merit and national importance; (2) the individual 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 labor certification. NIW eligibility must be established by a preponderance of the evidence under all three “prongs” of the above analysis, and NIW adjudications remain at the discretion of USCIS. Following Dhanasar, further updates to the framework by which NIW petitions are adjudicated at USCIS were limited, but a flurry of activity in 2022 has provided welcome updates for many NIW petitioners.

In January 2022, as part of an initiative by the Biden Administration to attract and retain STEM workers, USCIS issued policy guidance that facilitated significant updates to NIW adjudications – including special considerations for STEM fields, letters from governmental or quasi-governmental entities, and entrepreneurs. The most significant of these policy changes so far has been the prioritization of individuals with advanced STEM degrees for NIW classification, with STEM education (particularly STEM PhDs) now being considered a strong positive factor at all three steps of the Dhanasar analysis. Under the January 2022 guidance, USCIS specifically recognizes the importance of STEM fields to U.S. competitiveness and national security. While individuals with advanced STEM education, including individuals in biomedical science, have always been well-suited for NIW classification, the 2022 guidance streamlines the assessment of NIW petitions filed by or on behalf of individuals in STEM fields.

Regarding the first prong of the Dhanasar analysis, USCIS recognizes that many STEM endeavors have substantial merit to U.S. science and technology interests and significantly broad implications to demonstrate national importance. However, the guidance also confirms that certain STEM activities, such as teaching in STEM fields, remain too localized in impact to support NIW classification. Under the second prong of the Dhanasar analysis, an advanced degree in a STEM field relevant to the proposed endeavor is considered an “especially positive factor” for NIW classification, particularly a STEM PhD. While a STEM degree alone is not enough to demonstrate that an individual is well positioned to advance in his or her field, USCIS recognizes that even highly theoretical STEM PhDs may specialize in a narrow area of particular importance to U.S. competitiveness or national security, such that an NIW may be granted. Finally, under the third prong of the Dhanasar analysis, USCIS recognizes that individuals with advanced STEM degrees who will be engaged in work furthering a critical and emerging technology or another STEM area important to U.S. competitiveness, and who are otherwise well positioned to advance their proposed endeavor, can be of significant benefit to the U.S. even if there are similar American workers available.

Together with its STEM guidance, USCIS also updated its NIW policy guidance to clarify that letters from interested government agencies or quasi-government agencies can also be relevant to all three prongs of the Dhanasar analysis. For example, such letters can help demonstrate that a proposed endeavor is of interest to the government on a national level under prong one because the work can advance a critical or emerging technology. Such letters can also confirm an individual’s positioning in his or her field under prong two or explain why certain skills or contributions are particularly urgent for the U.S. to retain under prong three. Overall, like advanced STEM education, such letters can be considered a strong positive for NIW adjudications.

Finally, USCIS also clarified in its January 2022 guidance how entrepreneurs can take advantage of the NIW classification while also recognizing that these cases may present very differently when compared to traditional NIW petitions. Accounting for the nature of startup businesses, USCIS will specifically consider factors such as ownership of a U.S.-based entity; investments; incubator or accelerator support; intellectual property; revenue generation; and job creation alongside more traditional NIW factors like education, training, and awards when adjudicating entrepreneurial NIW petitions. Overall, however, the totality of the facts must still support a finding that each of the Dhanasar prongs is established by a preponderance of the evidence.

Subsequently, in March 2022, USCIS announced that expedited processing would, for the first time, be made available for NIW petitions, and the agency began a phased roll-out of premium processing in July 2022. This was a welcome development for many NIW petitioners, as USCIS processing times for NIW adjudications had been steadily increasing to well over a year. Under premium processing for NIW petitions, USCIS must issue an initial decision on a case within 45 days, and while the initial decision may result in the issuance of a request for additional evidence (RFE), this is a particularly welcome development for well-qualified individuals who have an immigration or personal need to secure a faster decision on their NIW.

The combined impact of the above policy updates and processing improvements has been a noticeable improvement in the processing time for many NIW filings, although there remain long-pending outliers and processing times may continue to change. The Philadelphia region’s robust community of universities, healthcare organizations, and pharmaceutical companies will likely welcome the additional talent that will contribute to innovation and progress in the industry.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the October 7, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.