Making A Case For A National Interest Waiver

One of the ways that a foreign national can apply for a green card (permanent residence) is to apply for a "National Interest Waiver" which allows applicants to bypass the lengthy, expensive, and oftentimes problematic labor certification process and requirement of a U.S. job offer. In the past, NIW cases were approved inconsistently by US Citizenship & Immigration Services (USCIS), relying on somewhat vague criteria from caselaw, making it difficult for attorneys and foreign nationals to assess whether a potential case would likely be successful.

Now, the Administrative Appeals Office (AAO) through Matter of Dhanasar has provided three relatively clear criteria for granting a national interest waiver:

1) The foreign national's proposed endeavor has both substantial merit and national importance;

2) The foreign national is well positioned to advance the proposed endeavor; and

3) 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.

So, what is needed to meet each of the criteria? The first prong can be met by showing that the foreign national's field of work has at least national implications. In recent decisions, USCIS seems to be less stringent on defining "national" by geography. In Matter of Dhanasar, the AAO also provided an example of how an entrepreneur can qualify by stating that "an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance." Entrepreneurs establishing and owning a company in the U.S. are not able to sponsor themselves through their own company using the usual labor certification process. Therefore, an entrepreneur anticipating hiring a substantial number of U.S. workers could satisfy this first prong for a national interest waiver and a green card.

The second prong is focused on the foreign national, and requires showing that the individual is likely to succeed in his/her plan. Factors to be considered include, but are not limited to, the education, skills, knowledge and record of success of the foreign national in related or similar efforts; having a comprehensive plan for future activities; having made progress towards achieving the proposed endeavor; and/or the interest of potential customers, users, investors, or other relevant entities or individuals in the proposed endeavor. However, this criterion does not require showing that the foreign national is more likely than not to ultimately succeed in the endeavor, recognizing that many endeavors ultimately fail, despite having a solid plan and sufficient execution.

The third prong requires showing that it would be beneficial to the U.S. to waive the requirements of a job offer and labor certification. The existence of the national interest waiver recognizes that the importance of protecting U.S. workers through the labor certification process can be outweighed by other factors that benefit the national interest. This new test of eligibility provides that USCIS may look at certain factors in analyzing this third prong, such as whether it would be impractical for the foreign national to obtain a job offer or for a U.S. employer to proceed with a labor certification; whether the U.S. would still benefit from the foreign national's endeavor even if other qualified U.S. workers were available; and whether the proposed endeavor is sufficiently urgent to merit waiving the time involved in the labor certification process. This criterion does not require showing harm to the national interest or a comparison to other U.S. workers in the field, as was previously needed.

This new test to determine if a foreign national's proposed work in the U.S. warrants a national interest waiver potentially opens the door for approval for a greater number of foreign nationals. It opens a much clearer pathway to the national interest waiver than in the past, and grants broader flexibility to apply to many different situations.