Standards Broadened for Green Cards Based on National Interest Waivers

In late December, a precedent-setting case, Matter of Dhanasar, revised the analytical framework for assessing eligibility for national interest waivers (NIW) and presumably making NIWs more broadly available to foreign nationals who are pursuing endeavors that would benefit the United States, including entrepreneurs and individuals who are self-employed. The NIW is a subcategory of the employment-based second (EB-2) preference category. The Dhanasar decision is essentially a legacy of the Obama Administration, which sought to promote research, development and entrepreneurship.

Under the new test, the petitioner must demonstrate that (1) the foreign national’s proposed “endeavor” – work – has substantial merit and national importance; (2) the foreign national is well positioned to advance his or her proposed endeavor; and (3) it would be beneficial to the United States to waive the normal job offer and labor certification requirements of the EB-2 category. The decision also notes that the petitioner must show that a favorable exercise of discretion is warranted. USCIS is now training its service center adjudicators to ensure that decision-making is conducted consistently with the new decision.

 In the wake of new restrictions on immigrants, this is welcome news for those highly skilled professionals who may be eligible and especially so for those who do not have an employer willing or able to sponsor them for a green card. Regrettably, EB-2 NIW cases cannot be premium processed, and cases are now taking anywhere from seven to 10 months to be adjudicated at the service centers.

 

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