Business Immigration Insights

On December 27, 2016, the Administrative Appeals Office of U.S. Citizenship & Immigration Services (USCIS) issued a far-reaching decision, Matter of Dhanasar, that sets a new legal framework for approval of National Interest Waiver (NIW) petitions and is likely to greatly increase the value of this green card category.  The newly designated precedent decision also vacates Matter of New York State Department of Transportation, a 1998 case that has severely limited the usability of the NIW petition for almost 20 years.

In sponsoring a foreign national for a green card, a U.S. employer normally must prove first that no qualified US worker is available for the sponsored position – a preliminary step called “labor certification” that is conducted before the U.S. Department of Labor (DOL).  The NIW statute created what was meant to be a broad, flexible waiver of this requirement if an employer could show it would be “in the national interest” to skip it and go directly to the final steps, conducted before USCIS.  Because of DOL’s long processing times, arduous rules for the required “labor market test,” and increasingly unrealistic prevailing wage determinations, skipping labor certification can shave more than a year from the green card process and even make sponsorship possible when it would not be possible otherwise.  The NIW category also allows entrepreneurs and the self-employed to “self-sponsor,” a very rare benefit under US immigration law that is impossible when labor certification is required.

Because the 1998 case established a set of legal standards that were both confusing and unsupported by statute, it has been extremely difficult, and often impossible, to win an NIW case.  Under the Dhanasar framework, however, a petition may be approved if the job has substantial merit and national importance; if the foreign national is well positioned to carry out the job activities; and if, on balance, it would be beneficial to the country to waive labor certification.  The decision sets out careful guidelines on these three criteria that should better enable US employers and their immigration counsel to analyze whether an NIW petition is feasible and what types of supporting evidence and details should be provided.  We look forward to a renaissance of interest in this highly valuable green card category and to more consistent approvals from USCIS of NIW petitions.