AAO Decision Changes Eligibility For National Interest Waiver

Wednesday, December 28, 2016 - 11:00am

In the matter of DHANASAR 26 I&N Dec. 884 (AAO 2016) the U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office  (“AAO”) revised and broadened the standards for granting a National Interest Waiver. This applies to foreign nationals who may qualify for permanent residence in the U.S. without an employer sponsor or an approved Labor Certification Application, due to nature of their work and its national importance to the U.S.

The previous standards were:

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.  Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), vacated.

The AAO’s decision on December 27, 2016, modified these standards so that it is no longer necessary to demonstrate that the beneficiary’s work is national in scope, but rather that s/he is well placed to advance meritorious and nationally important work.   In addition, the decision broadens the scope of the third criterion above to consider scenarios where it would be impractical to obtain labor certification due to the urgency of the need to fill the position or because of practical realities, such as in cases where the beneficiary is an entrepreneur or perhaps the owner of the company.