Do you qualify for a 'National Interest' Green Card?
The U. S. Citizenship and Immigration Services has revamped an immigrant visa category thought to be out of reach for many. In December, the Administrative Appeals Office decided Matter of Dhanasar which could open the Golden Door to many more immigrants than before. Do you qualify?
Overview and the previous guidance - NYSDOTApproximately 40,000 workers and their families immigrate to the U.S. each year in the Employment-Based Second Preference ("EB-2") category. Generally speaking, this classification is available to professionals holding advanced degrees or exceptional ability that have received a permanent job offer from a U.S. company. Usually, the employer needs to test the labor market to show there are no U.S. workers who are able, willing, qualified, and available for the subject employment. Following recruitment, if no such U.S. workers exist, the employer may obtain a labor certification and petition for the immigrant to receive a Green Card.
There is one key exception to these requirements. The government may waive the requirements of both a job offer and a labor certification if the applicant's immigration is in the "national interest." Importantly, this allows one to self-sponsor if desired. Although enacted as part of the last major redesign of the immigration laws in 1991, the government has not defined "national interest" and provided regulatory guidance on which cases qualify.
In 1998, the USCIS Administrative Appeals Office ("AAO") decided Matter of New York State Department of Transportation ("NYSDOT"), a seminal case that established the framework for deciding national interest waiver ("NIW") petitions. Following NYSDOT, USCIS was to examine whether the area of the immigrant's proposed employment was of "substantial intrinsic merit," that the benefits from the immigrant's Green Card would be "national in scope," and conclude that the national interest would be adversely affected if a labor market test were required.
However, prospective immigrants, their attorneys, and even the AAO itself have lamented how the NYSDOT criteria were unclear, inflexible, and difficult to analyze and apply. As the AAO subsequently the NYSDOT concepts proved to be "particularly ill-suited [in evaluating] petitions from self-employed individuals, such as entrepreneurs." Happily, on December 27, 2016, the AAO issued the Dhanasar decision, completely overhauling the NIW framework. Below we discuss the new evidentiary requirements for obtaining an EB-2 NIW Green Card.
"Prong 0:" Do you hold an advanced degree (or equivalent) or "Exceptional Ability?"This prerequisite has not changed. EB-2 applicants need to have an advanced degree (above a Bachelor's) or a foreign equivalent. The educational requirement can also be met upon a showing of attainment of a Bachelor's degree plus five years of progressive post-degree experience in the relevant endeavor.
Alternatively, applicants may show they qualify as possessing "exceptional ability." Such a showing requires at least three of the following: 1) A degree, diploma, certificate, or similar award relating to the area of exceptional ability; 2) Ten years of experience in the field; 3) A license to practice the profession or certification for a particular profession or occupation; 4) Salary / remuneration which demonstrates exceptional ability; 5) Evidence of membership in professional associations; 6) Recognition by peers for achievements and contributions to the field; or 7) Other comparable evidence , if the above are inapplicable.
Upon a showing that this education / experience / ability prerequisite is met, one can turn to the new Dhanasar criteria itself, which focuses on the applicant and the endeavor to be undertaken.
Prong 1: Are you seeking employment in an endeavor of "substantial merit and national importance?"The AAO has reformed the NYSDOT and given concrete examples of how immigrants may qualify. Specifically, one can demonstrate merit in "a range of areas such as business, entrepreneurialism, science, technology, culture, health or education." Further, evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required. That said, petitions might be bolstered by submitting a business plan or economic impact study showing the positive economic benefits resulting from the applicant's immigration to the U.S.
Prong 2: Are you well-positioned to advance this endeavor?Under this prong, the AAO will examine whether the immigrant is appropriately positioned to advance the contemplated endeavor. Relevant factors include: 1) Education and skills; 2) Record of success; 3) Model or plan for future activities; 4) Progress towards achievement; 5) Interest of potential customers, investors or other relevant entities.
Notably, the AAO has made it clear that many "endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed [...] petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor."
Prong 3: On balance, is your immigration beneficial to the U.S. to waive usual job requirements?In Dhanasar, the AAO took serious issue with the third prong of NYSDOT, essentially scrapping it. NIW adjudications now require USCIS to examine whether waiving the job offer and labor market test would be beneficial to the U.S. given the applicant's merit as an immigrant. In this balancing test, examiners are to evaluate whether 1) A job offer or labor certification is impractical; 2) The immigrant's contributions are significant; 3) Even if qualified U.S. workers are available, the U.S. will still benefit from the immigrant's contributions; 4) The national interest is "sufficiently urgent" to warrant forgoing a labor certification.
Unlike NYSDOT, Dhanasar explicitly does not require a showing of harm to the national interest if the immigrant were to depart, nor a comparison of U.S. workers in the field. This prong is "more flexible ... can be met in a range of ways ... [and] is meant to apply to a greater variety of individuals."
Is the EB-2 NIW right for you?The Dhanasar decision is an important and welcomed update to the NIW guidance, significantly liberalizing the visa for many prospective immigrants, especially the self-employed. Yet it is important to note that this route may not be the best for all who might qualify, as factors such as retrogression (for P.R. China and India natives) and the nature of the endeavor itself must be carefully considered. Some immigrants, especially entrepreneurs, may be better served in the EB-5 or EB-1C categories. Nevertheless, we think this case is quite promising and stands poised to revitalize the EB-2 NIW category.