In December 2016, the Administrative Appeals Office (AAO), an appellate body within the U.S. immigration apparatus with the authority to overturn the decisions of U.S. Citizenship and Immigration Services (USCIS), issued a decision in the case Matter of Dhanasar. In their decision, the AAO sided with the petitioner, Dr. Dhanasar, who argued his National Interest Waiver application had been wrongfully denied by USCIS. While most decisions of the AAO are of direct relevance to the applicant(a) alone, however, the AAO took this opportunity to introduce new criteria for the National Interest Waiver category. Their explicit aim was to simplify and improve the criteria previously set out in Matter of New York State Department of Transportation (referred to as NYSDOT), which had drawn considerable criticism over the preceding eighteen years.
By way of context, the Immigration and Nationality Act (INA) authorizes the Attorney General to waive the requirement that certain green card applicants have a permanent job offer, and that their employers go through the process of permanent labor certification with the Department of Labor. This waiver shall only be issued, however, where it is considered to be in the “national interest” of the United States. Neither the INA nor subsequent immigration regulations have clarified how the “national interest” analysis should be carried out. This task has therefore been left to courts.
Matter of Dhansar sets out three new criteria that must be met before a National Interest Waiver can be issued. First, the proposed endeavor (the applicant’s work) must have substantial merit and national importance. Second, the applicant must be well positioned to advance the endeavor. Third, the applicant must show it would, on balance, be beneficial to the United States to waive the requirement of a permanent job offer and, therefore, the permanent labor certification process.
One of the important distinctions between the NYSDOT criteria and the Matter of Dhanasar criteria relates to the manner in which the applicant’s work benefits others across the nation. Under NYSDOT, applicants were required to show their work was “national in scope.” This analysis focused on the geographic impact of their work. Under Matter of Dhanasar, by comparison, applicants are required to show their work has “national importance.” This analysis focuses instead on the value of the applicant’s work to the nation as a whole. A hypothetical example helps to demonstrate the distinction. If a leading expert on polar bear conservation had applied under the NYSDOT standard, it would have been challenging to argue their work was “national in scope” since it impacts just one of the 50 states: Alaska. Under the Matter of Dhanasar standard, however, the same applicant must instead show why polar bear preservation is valuable to the United States as a whole: a much easier task.
The distinctions between NYSDOT and Matter of Dhanasar are many and varied and, while the new criteria are not without their own limitations, they represent a welcome improvement to an important green card category.
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Note: The information in this post is general in nature, does not represent legal advice, and should not be relied on to determine immigration strategy and/or prepare an immigration application for a U.S. government agency. Immigration law is a rapidly changing field and each case has its own facts that will determine the appropriate strategy.