An alien of exceptional ability may obtain a waiver of job offer and the certified labor certification requirement if such waiver is deemed to be in the national interest. This waiver applies only to professionals holding an advanced degree and aliens of exceptional ability.
While the law provisions have been left vague, in 1998 the Administrative Appeals Office (AAO) established a three-prong test for the national interest waiver category in the decision for Matter of New York State Department of Transportation (NYSDOT), as introduced in the below:
- The first prong test: the alien must seek employment in an area that has substantial intrinsic merit.
- The second prong test: the waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
- The third prong test: it must be demonstrated that the national interest would be adversely affected if the employer is required to proceed with the labor certification process. Further, it requires that, as a condition of meeting the third prong, it must be proved that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
After nearly two decades, the AAO has eliminated the NYSDOT standard and replaced it with a new much more realistic one in its precedent decision, Matter of Dhanasar. The AAO notes that in NYSDOT (a) the word “intrinsic” is too subjective, (b) the second prong requiring the benefit to be “national in scope” is construed too narrowly by focusing on the geographic impact of the benefit, and (c) the third prong is the most problematic because it looks to past success to predict future benefit, but while there are some talented individuals for whom past achievements are not the best predictor of future success. The Dhanasar standards include:
The NIW immigrant petition may be approved if the petitioner demonstrates:
- That the foreign national’s proposed endeavor has both substantial merit and national importance;
- That he or she is well positioned to advance the proposed endeavor; and
- That, on balance, it would be beneficial to the United States to waive the job offer and permanent labor certification requirements.
- Prong 1: Substantial Merit & National Importance
The AAO notes that merit may be demonstrated in a wide range of areas including business, entrepreneurialism, science, technology, culture, health, or education. The AAO indicates that showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided – for example, research, pure science and the furtherance of human knowledge may be potentially enough. Another example offered of merit is where there are national or even global implications in a particular field such as resulting from improved manufacturing processes or medical advances. Also, in modifying this prong to assess “national importance” rather than “national in scope”, the AAO seeks to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, may well be understood to have national importance.
- Prong 2: Well Positioned to Advance the Proposed Endeavor
To demonstrate this second prong, the AAO will look at 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.”
- Prong 3: On Balance, it would be Beneficial to the U.S. to waiver the Job Offer & L/C Requirements
The AAO is directing USCIS examiners to consider factors such as:
- “whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from 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.
It is emphasized that, in each case, the factor(s) considered must, taken together, indicate 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.”
Key here is that unlike NYSDOT, the applicant needs not sure a harm to the national interest if a labor certification is not conducted. In a footnote, the AAO significantly notes that because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.
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