The U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO), recently issued Matter of Dhanasar, which changes the standard that USCIS officers must follow when deciding whether to approve a “national interest waiver” for an immigrant visa petition. This waiver is granted when the foreign national’s work is determined to be in the “national interest” of the United States. The waiver eliminates the requirement that the foreign national have a job offer from a U.S. employer that was certified by the U.S. Department of Labor after testing the U.S. labor market and meeting other prerequisites. The waiver is only available for a foreign national who either is an “advanced degree professional” (such as an engineer who has a master’s degree) or who has “exceptional ability in the sciences, arts or business.”

With a “national interest waiver,” a foreign national could sponsor himself or herself. This is particularly important for entrepreneurs who generally are their own bosses. With an approved petition, the foreign national could proceed with the “green card” process to become a permanent resident—although the timing for filing and completing this step could be delayed due to high visa demand. Unfortunately, until Dhanasar was issued, USCIS’ interpretation of the national interest requirement made it very difficult for entrepreneurs to qualify, as Department of Homeland Security (DHS) Secretary Johnson recognized in a November 2014 memorandum. To correct the problem, which the Secretary viewed as hampering U.S. job creation, he directed USCIS “to issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.” Dhanasar is that long-awaited policy change, but its effectiveness will depend on whether USCIS adjudicators actually apply the new standard as intended.

The AAO issued Dhanasar as a precedent so that all US Citizenship and Immigration Services (USCIS) officers would be required to follow the same framework. It replaces and overturns a 1998 decision (often referred to as NYSDOT), which had constrained USCIS adjudicators from approving these waivers. The new standard has three parts:

  • The “foreign national’s proposed endeavor has both substantial merit and national importance”;
  • The “foreign national is well positioned to advance the proposed endeavor”; and
  • The United States would benefit “on balance” if the job offer and permanent labor certification requirements are waived.

Important differences from the old standard include:

  • The new standard recognizes that a foreign national’s intended work can be in the national interest even when limited to a particular geographic location (such as a scientist who will be applying his innovative methods to improve water quality to the Chesapeake Bay watershed). Under the NYSDOT standard, USCIS often viewed such activities as “local,” and would deny the waiver.
  • The new standard considers the “potential prospective impact” of the foreign national’s intended work, while the earlier standard placed great weight on past accomplishments as the measure of future benefit. This should help entrepreneurs who may not have a lengthy “track record.” Entrepreneurs also should benefit from the new standard’s focus on evidence that the foreign national is “well positioned,” which places the emphasis on planning and process rather than ultimate success. Recognizing that entrepreneurs can experience failures along the path to success, Dhanasar explicitly rejects a requirement that a foreign national demonstrate that the endeavor is “more likely than not to ultimately succeed.” Without this admonition, entrepreneurs most likely would face denials on this basis.
  • The new standard gives greater consideration to the foreign national’s qualifications and what he or she seeks to accomplish when determining whether the job offer and permanent labor certification prerequisite are waived. The earlier standard often resulted in USCIS officers requiring a comparison between the foreign national and hypothetical U.S. workers who might have been identified if the permanent labor certification process was required. This was not feasible for an entrepreneur seeking to bring his or her particular talents to the United States.

This new standard is likely to be of much greater benefit than the entrepreneur parole program that USCIS recently finalized, which will not begin before July 2017. With the parole program, an entrepreneur faces numerous limitations, including substantial funding requirements and constraints on changes to business operations; a maximum of five years in the U.S.; a status that is subject to termination at any time without recourse and precludes changing to nonimmigrant status or applying for permanent residence. In contrast, the AAO has provided a framework that an entrepreneur can utilize now and under which he or she can become a permanent resident of the United States.

Photo by Kris Krüg.