National Interest Waiver: Trends in Adjudication under Dhanasar
Immigrant petitions in the employment-based, second-preference category—otherwise referred to as EB-2—diverge in a critical way from those falling in the EB-1, or first-preference, category. Generally, a permanent job offer is required.
Why is this a significant distinction? Because prospective employment is a criterion, beneficiaries of EB-2 visas are reliant on their intended employers to petition on their behalf, and an approved PERM labor certification is a mandatory component of their applications. From the perspective of employers, the labor certification process, which serves to protect the wages and employment conditions of U.S. workers, is often a time-consuming and costly endeavor.
But within the EB-2 category, there is a workaround to these potential disincentives: the National Interest Waiver (NIW).
NIW Petitions
The hallmark of NIWs is that an applicant can seek an exemption to the requisite job offer. As a result, neither a petitioning U.S. employer nor an approved labor certification is required. Intending immigrants are thus able to submit NIW applications themselves, serving as both petitioner and beneficiary. (Note that NIW petitioners must still satisfy EB-2 requirements—that is, possession of an advanced degree or “exceptional ability” in the arts, business, or sciences.)
The Immigration Act of 1990 stipulates how aliens can qualify for this allowance. According to statute, the standard for meriting an NIW is demonstrating that one’s admission to the United States will provide “prospective national benefit.”
But other than that ambiguous requirement, immigration law is silent. Similarly, there are no regulations that explicitly define what constitutes “national benefit.” Adjudication of NIW petitions therefore amounts to discretionary decision-making, with U.S. Citizenship and Immigration Services (USCIS) officers rendering decisions on NIWs using a flexible benchmark open to subjective interpretations of an alien’s experience, accomplishments, and proposed plans as a permanent resident of the United States, and with the burden of proof resting entirely on the petitioning foreign national.
Precedents
Needless to say, given the vague conception of “national benefit,” a guideline for adjudicating NIW petitions is necessary. For nearly two decades, one case—In re New York State Dept. of Transportation (NYSDOT)—provided such a framework. Decided by the Administrative Appeals Office (AAO) of USCIS, NYSDOT devised a multi-prong test for evaluating whether or not a prospective permanent resident offered the national benefit referred to in statute:
In practice, NYSDOT’s standard fairly easily accommodated researchers and scientists who could illustrate the impact of their work on their field, relying on objective metrics such as the number of citations they had accrued. However, for foreign nationals outside of academia, particularly those who were entrepreneurs and founders of start-ups, the test proved difficult.
Recognizing NYSDOT was due for a revisit, on December 27, 2016, the AAO announced a new analytical framework for evaluating NIWs. In the associated case, Matter of Dhanasar, the AAO crystallized the shortcomings of NYSDOT and set a new three-prong test:
Compared to NYSDOT, the standard set in Dhanasar is considerably more flexible. (In fact, the AAO conceded as much in its decision, writing that the new framework “is meant to apply to a greater variety of individuals.”) NIWs have thus become more accessible to applicants from a host of backgrounds.
Adjudicating NIWs
Subsequent to the Dhanasar decision, USCIS trained its personnel on using the revised test, and officers began evaluating NIW petitions under the new framework earlier this spring. While each application is judged on its own merits, our firm has distilled general factors that have been conducive to favorable decisions.
First and foremost, USCIS still requires a defined relationship between an alien’s proposed endeavor, on the one hand, and the resultant benefit redounding to the community-at-large, on the other. For example, demonstrating such benefit has been accomplished by asserting the following:
No occupation or academic or professional background is precluded from asserting national benefit. In fact, USCIS has ruled favorably on NIW petitions submitted by a wide range of professionals. The table below highlights how a specific background was successfully argued to provide national benefit.
Occupation |
National Benefit |
Metallurgical engineer |
The petitioner’s expertise and record of developing innovative mining practices that mitigated pollution resulted in industry-wide efficiency and cost-effectiveness, in addition to environmental benefit. |
Shopping mall general manager |
According to local government officials, the new mall was vital to the community’s economic well-being. |
Computer programmer |
The petitioner designed programs that located radioactive waste disposal sites, improving public safety by assisting with maintenance of these hazardous sites. |
Corporate vice president |
The petitioner worked for a paper-recycling company, in the process improving efficiency, reducing waste, and benefiting the environment. |
Professor of anthropology |
The professor’s research centered on cocaine production in Peru, which enhanced the U.S. government’s drug mitigation efforts. |
As the above examples show, a successful NIW petition must demonstrate how the applicant’s past experiences and proposed plans in the United States factor into a national need. Evidence provided in fulfillment of the three prongs can be thought of as puzzle pieces to a big picture, as each prong plays a role inestablishing this overarching assertion.
Following is an overview of how to effectively meet each prong of the Dhanasar test. We provide real-world examples to highlight how the prongs have been met.
Prong 1: Substantial Merit and National Importance
The first leg of the test serves to establish that the foreign national has proposed an endeavor whose goal is worthwhile and beneficial to an established interest or need of the United States.
Substantial Merit
In simple terms, arguing that an alien’s work has substantial merit requires explaining why the work is important in the first place. To this end, it’s helpful to answer one question: What are the practical applications or positive consequences of the alien’s work?
In addition to a detailed description of the proposed endeavor, letters of recommendation are crucial pieces of documentary evidence to establish or reaffirm why an alien’s work has substantial merit. Written by experts in the applicant’s field, these letters describe the implications of the alien’s work on his or her field and community-at-large.
Examples of aliens’ proposed endeavors of substantial merit include:
National Importance
Dhanasar effectively broadened the types of proposed endeavors that can be deemed of national importance. Ultimately, USCIS gauges national importance in terms of potential prospective impact that is broader than one’s industry. To this end, successful applicants convincingly argue that it is not merely their specific companies, clientele, or even geographic locations that will benefit from their work. Documentation should support the potential of the proposed endeavor to, for example, employ U.S. workers; enhance society, culture, or the arts; or impact a function or entity of the government described as having national importance. Evidence often takes the form of letters of recommendation in which experts attest to the influence of the alien’s work on their own; citations, which demonstrate the impact of the alien’s work on his or her field as well as the extent to which the alien’s work is being implemented by others; and funding from government agencies, which perhaps most clearly shows that the alien’s work aligns with U.S. national interests.
Examples of aliens’ proposed endeavors of national importance include:
Prong 2: Well Positioned to Advance the Proposed Endeavor
After establishing that a proposed endeavor is of merit and has potential prospective impact, a successful NIW petitioner must next demonstrate that he or she has the education, skills, knowledge, experience, and record of success necessary to undertaking the proposed endeavor. USCIS favors applications that show an alien’s documented progress towards the proposed endeavor, a detailed plan for future work, and evidence of interested parties, including potential customers or investors. Similar to the first prong, letters of recommendation detailing the critical role the foreign national played in high-profile projects are effective pieces of evidence. Other evidence can take the form of documentation of memberships and other noteworthy achievements in the foreign national’s field; media reports; and a record of the alien’s education and skills.
It is often helpful to consider another employment-based visa, the EB-1A, when collecting evidence in fulfillment of this prong of Dhanasar. Granted, successful EB-1A petitioners satisfy a much higher standard than do NIW applicants. But the sort of evidence that meets the stricter requirements of EB-1As—from letters of recommendation and citation records to prestigious awards and patents—is similar to that which can be used to demonstrate an alien’s record of achievement and the significance of his or her work, thereby establishing how well suited an alien is to advancing his or her proposed endeavor.
Examples of foreign nationals who conveyed that they are well positioned to advance their proposed endeavors include:
Prong 3: Balance Test
After an NIW applicant satisfies the first two prongs of Dhanasar, USCIS looks at the totality of evidence presented to determine whether or not, “on balance,” the United States would benefit from waiving the requisite job offer and labor certification of an EB-2 petition. Arguments conducive to passing the balance test range from demonstrating that the applicant’s skills and expertise are not articulable in a labor certification, to showing how the proposed endeavor will induce job creation, to arguing that self-employment of the applicant would not adversely affect any U.S. workers.
Examples of foreign nationals who passed the balance test include:
In-Depth Case Analyses
An NIW case at our firm that was approved earlier this month provides an even closer look at how applicants can successfully meet each of the three prongs of Dhanasar. Likewise, a review of two recent AAO decisions on appeals, though not precedent-setting, is illustrative of how USCIS officers are being instructed to use the test. Below, we analyze these cases in order to find patterns in NIW adjudication practices under Dhanasar.
Case Study 1: Dr. L
Our client, whom we’ll call Dr. L, retained our firm earlier this year for his NIW petition. Dr. L came to us with objectively impressive educational and professional credentials, having obtained a doctorate in mechanical engineering and having worked for such companies as General Electric. His proposed endeavor was to parlay his skills, experience, and research into developing innovative, more accurate energy modeling methods. These methods improve the ability of companies to enhance their energy efficiency and manage their energy consumption. Dr. L sought to accomplish this in his capacity as a Senior Project Engineer at an energy company.
Prong 1: Substantial Merit and National Importance
Energy consumption has significant implications at not just the level of individual companies, but also the United States at large. Each year, more and more energy is consumed to power commerce and facilitate daily life. Coinciding with this trend is an uptick in pollution and other environmental consequences, as well as a rise in the costs shouldered by both American businesses and American households. Dr. L’s research—not just theoretical, but applied—into deploying artificial neural network-based machine learning to create state-of-the-art energy modeling dovetailed with the larger goals of eliminating energy inefficiency, decreasing reliance on foreign sources of energy, reducing environmental damage, and saving money.
Testimonials from independent experts and an array of journal publications widely cited by others in his field affirmed Dr. L’s proposed endeavor had both substantial merit and national importance. USCIS agreed.
Prong 2: Well Positioned to Advance Proposed Endeavor
Dr. L’s professional experience comprised stints at a host of international energy companies, where he consistently assumed leading roles in furthering his research and spearheading projects based on his research. We were able to point to Dr. L’s record of practical applications of his work, some of which have resulted in millions of dollars of savings for companies and government agencies. His research was not only disseminated in prestigious scientific journals, but was also central to other experts’ work and even piqued the interest of the federal government. In fact, DOE incorporated Dr. L’s research in an energy simulation tool that has become a national standard. Dr. L’s stature in his field was further highlighted by his receipt of highly selective academic awards.
Recommendation letters from experts describing Dr. L’s central role in various projects and the role of his research in their own pursuits, in addition to evidence of academic awards and media reports, demonstrated that Dr. L was well positioned, if not uniquely positioned, to advance his proposed endeavor. USCIS agreed.
Prong 3: Balance Test
The essence of Dr. L’s petition package was the following: Taken together, Dr. L’s innovations—both theoretical and practical—in his field, his documented contributions to others’ work, his track record of success, and his impressive educational and professional credentials were a skillset that a labor certification could not articulate. We argued that Dr. L merited a National Interest Waiver in light of the proven results of his work in energy efficiency, which he sought to continue, and that the United States would stand to benefit in terms of both the economy and the environment by providing Dr. L an NIW. USCIS agreed.
Case Study 2: Matter of K-H-S-
On June 7, the AAO sustained an appeal by an NIW applicant who believed the Texas Service Center had erred in denying his petition. Though it does not set precedent, the decision, Matter of K-H-S-, nonetheless sheds light on how USCIS adjudicators are being instructed to apply the Dhanasar framework.
In Matter of K-H-S-, the petitioner, whom we’ll call Dr. K, was a postdoc whose research focused on investigating molecular treatments for cardiovascular disease. The original USCIS officer failed to translate Dr. K’s Ph.D. from a university in Taiwan into the requisite “advanced degree” for EB-2 petitions, and ultimately denied Dr. K’s NIW application as a petitioner of “extraordinary ability.” The AAO corrected this error, before subsequently arguing how Dr. K had in fact satisfied each prong of the Dhanasar test.
Prong 1: Substantial Merit and National Importance
In his filing, Dr. K proposed to develop molecular targets that assist in the creation of novel therapeutic and pharmacological methods of treating cardiovascular disease. Dr. K’s educational background and work experience, which included being employed as an H-1B researcher for the National Institutes of Health (NIH), established the substantial merit of his proposed endeavor. Additionally, reference letters in Dr. K’s petition package described in detail the importance of improving disease prevention and the cost of treatment in terms of both the individual afflicted by cardiovascular disease and the wider healthcare sector of the U.S. economy. According to government reports, healthcare is a $3 trillion—and consistently growing—industry for which total spending annually amounts to about a fifth of U.S. gross domestic product (GDP).
Prong 2: Well Positioned to Advance Proposed Endeavor
To establish the ability to perform his proposed endeavor, Dr. K included such evidence as his educational credentials, published and presented work, peer review activities, publication citation record, and recommendation letters that spoke to how his research was crucial to that of others in his field. Combined with his innovations, prior relationship with the NIH, and well-considered proposal, the AAO easily established that Dr. K was, in fact, well positioned to conduct the work he proposed.
Prong 3: Balance Test
According to the AAO, as a Ph.D. holder with experience and expertise on the molecular foundations of cardiovascular disease, and with the real potential, undergirded by a track record, to help patients, practitioners, and the nation’s healthcare industry, Dr. K would be a benefit to the United States as a permanent resident. Accordingly, the AAO sustained his appeal, and awarded him a National Interest Waiver.
Our Thoughts
Ultimately, two factors were central to the AAO’s decision. First, the appellate body clarified that Dr. K did not only meet, but actually surpassed, the minimum education requirements for an EB-2. And second, Dr. K’s recommendation letters supporting his application were persuasive pieces of evidence, as they specifically cited how Dr. K’s work impacted the cardiovascular research field and thereafter extrapolated such impact to the larger healthcare industry. The upshot: Letters from experts that are detailed and specific can be among the most important components of an NIW petition, particularly for post-doctoral researchers like Dr. K who must show how their work, however impressive in theoretical terms, has practical consequences.
Case Study 3: Matter of H-C-C-
Another case the AAO heard, Matter of H-C-C-, similarly featured a petitioner from the medical field. In this appeal, the petitioner, whom we’ll call Dr. H, was a plastic surgeon with both practical and research experience who endeavored to continue his work “aimed at developing new techniques in the areas of breast augmentation, rhinoplasty, and ophthalmoplasty.” The AAO rejected Dr. H’s appeal of the Texas Service Center’s original denial of his petition.
Prong 1: Substantial Merit and National Importance
Dr. H identified his proposed endeavor as helping patients as a clinician and researcher. He justified the substantial merit and national importance of his prospective employment by explaining how his research would improve plastic surgery techniques. Given his qualifications and the scope of his proposed endeavor, the AAO concluded that Dr. H had met the first prong of Dhanasar.
Prong 2: Well Positioned to Advance Proposed Endeavor
The AAO evaluated Dr. H’s credentials, research, and recommendation letters in which medical experts detailed his innovative methods in cosmetic surgery. In the end, however, this evidence was unconvincing. According to the AAO, Dr. H:
“…has not shown that his plastic surgery research has been frequently cited by other medical professionals or otherwise served as an impetus for progress in the field, that it has affected clinical practice, or that it has generated substantial positive discourse in the broader medical community.”
Further, Dr. H’s petition failed to explain the significance of the memberships he cited, the influence or effects of his research presentations, and a plan for how he intended to fund and execute his proposed endeavor. In other words, while the evidence of past research and professional experience no doubt characterized Dr. H as an accomplished plastic surgeon, missing from his petition was the answer to a basic question: “so what?” Unlike Dr. K’s case, Dr. H did not convincingly articulate how his work has impacted and will continue to impact his field and the wider medical community in specific, substantive ways. Without such a track record, the AAO concluded that Dr. H had not met the second prong of Dhanasar.
Prong 3: Balance Test
Perhaps needless to say, failing to meet one of the first two prongs renders moot the task of evaluating a case with the third. And so, in denying Dr. H’s appeal, the AAO simply stated that “further discussion of the balancing factors under the third prong would serve no meaningful purpose.”
Our Thoughts
It is hardly difficult to envision how Dr. H’s proposal to continue innovating in cosmetic surgery for the benefit of patients and the medical field in general would factor into U.S. interests. But the job of a USCIS adjudicator is not to impose assumptions, however credible, onto an NIW petition. Rather, applicants must submit evidence demonstrating how they have already positively impacted their field. Equally important, they must establish how their track records prove the potential of their work to continue benefitting not only their patients, clients, or specific companies, but also the larger community. Detailed evidence to this end is essentially the answer to why an applicant’s proposed endeavor would matter to the United States. And as Dr. K’s successful appeal showcased, NIW petitioners must clearly demonstrate why their credentials and prior experiences make them well suited to accomplish their proposed work as U.S. permanent residents.
Other Adjudication Trends
Over the past few months, as our firm has received decisions on NIW cases adjudicated under the Dhanasar framework, our attorneys have made general observations that are applicable to all prospective applicants.
Processing Times
The difference in processing times between the Texas and Nebraska Service Centers has effectively reversed. As of August 2017, we have seen an average adjudicating time from the date of filing of roughly 18 months for petitions processed at the Nebraska Service Center, while the Texas Service Center has been processing NIWs in about six months. The caveat to this observation: processing times can vary considerably for individual cases, and the use of Dhanasar in NIW adjudication is, of course, still relatively new.
Importance of Impact and Implementation
Our attorneys can report the extent to which USCIS officers have focused of late on evidence showing how, with specific details, an alien’s work has been implemented in his or her field. This evidence serves as a point of departure for illustrating the prospective impact of an NIW petitioner’s proposed endeavor. It’s not enough for an applicant to argue, for instance, that her work developing state-of-the-art semiconductors will benefit the U.S. tech industry in terms of both cost-effectiveness and competitiveness, or that his experience in creating businesses will improve the U.S. workforce participation rate. What she should do is, say, include recommendation letters that show how her findings have factored into the manufacturing of more efficient computer chips, and he should submit evidence highlighting how he has, for instance, already established four companies that are job-creation engines currently thriving in his industry.
Indeed, all applicants must strive to show—specifically, not generally—that they possess a track record of success in which their work has yielded results or otherwise garnered interest from relevant parties that will factor into larger national benefit.
Our Firm is Here to Help
As our firm receives more decisions on our clients’ NIW petitions, we will continue to distill general trends in the still-nascent Dhanasar adjudication framework.
If you believe you qualify for a National Interest Waiver, we recommend starting your petition as soon as possible. Our experienced immigration attorneys have a strong record of winning approvals: since 2008, Zhang & Associates has helped nearly 3,000 foreign nationals obtain NIWs.
Before you start the application process, it’s imperative that you consult with a seasoned legal team. If you’re interested in filing an NIW, or any other employment-based visa application, contact us today to schedule a free consultation.
And for more information on National Interest Waivers, refer to the following links:
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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
He will use his experience and expertise to deliver the highest quality of service to our clients.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
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(08/22/2017)