Changes to National Interest Waiver Standard

The USCIS Administrative Appeals Office (AAO) issued a precedent decision overruling the longstanding standard for EB-2 National Interest Waiver green card cases and creating a more realistic three-part test to demonstrate “national interest.”

USCIS has discretion to grant a National Interest Waiver (NIW) to professionals with an advanced degree or individuals of exceptional ability who are eligible for the second employment-based preference category (EB-2). The NIW allows individuals in the EB-2 category to avoid the labor certification process if they can show their immigration would be in the “national interest.” The term “national interest” remained undefined until the now overruled AAO decision created a confusing standard resulting in inconsistent adjudication.

The new framework establishes a three-factor test that applies more flexibly to circumstances of petitioning employers and self-petitioning individuals:

1. The foreign national’s proposed endeavor has both substantial merit and national importance.

Petitioners can show the merit of an individual’s work in areas including “business, entrepreneurialism, science, technology, culture, health, or education,” and while USCIS may interpret a potentially significant economic impact favorably, such impact is not necessarily required. Research, pure science, and the furtherance of human knowledge can establish the endeavor’s merit, even if economic benefits are unlikely.

National importance is no longer defined geographically but rather considers the broader implications of the individual’s work. Examples of national importance include improved manufacturing processes or medical advances, or, for entrepreneurs, significant potential to employ U.S. workers or creating other substantial positive economic effects (especially in an economically depressed area).

2. The foreign national is well-positioned to advance the proposed endeavor.

The second factor considered is the individual’s “education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.”  The petitioner does not need to show that the individual’s endeavor is more likely than not to ultimately succeed, it is sufficient to demonstrate that the individual is in a good position to advance the endeavor.

3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Under the third factor, the USCIS will evaluate whether (1) the individual’s qualifications or proposed endeavor would make it impractical for the individual to secure a job offer or for the petitioner to obtain a labor certification; (2) the United States would still benefit from the foreign national’s contributions even if other qualified U.S. workers were available; and (3) the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

The third prong no longer requires a showing of harm to the national interest if a labor certification was required or comparing the individual against U.S. workers in the field. The new framework applies to a greater number of individuals including entrepreneurs or self-employed inventors for whom it may be impractical to secure a job offer or do a labor certification.

If you have further questions, please contact the Baker Donelson Immigration Group. See the AAO decision here.