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National Interest Waiver for Foreign-Born Researchers

Our Wakefield Immigration Lawyer Offers Skilled Advice

Are you thinking about obtaining a National Interest Wavier as a means of pursuing residency in the U.S.? Our skilled Wakefield immigration lawyer at DiSisto Law, P.C. is ready to give you experienced advice and guidance on how to tackle this challenging process.

A National Interest Waiver is approved when it is established that the national interest of the U.S. would be hurt otherwise.

Proving Your Skills

More than competency must be established by the documents you will submit. Your past accomplishments need to serve as testaments to your skills. The goal is for an understanding that you will serve the national interest of the U.S. better than other candidates who have similar training and experience.

Talk to DiSisto Law, P.C. by contacting us online to see how to get started with the process.

Criteria & Qualifications

In December 2016, the United States Citizenship & Immigration Services (USCIS) changed the rules governing the adjudication of EB-2 National Interest Waiver (NIW) cases. The new set of rules (known as the Dhanasar framework) make it easier to qualify for a National Interest Waiver (NIW) case. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which vacated Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) on which USCIS routinely relied when adjudicating NIW petitions.

Matter of Dhanasar indeed provides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW.

Under the new rules, the USCIS may approve a National Interest Waiver (NIW) case if the petitioner demonstrates that:

1) The petitioner’s work has both substantial merit & national importance;

2) The petitioner is well positioned to advance the specific field of expertise; and

3) “On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.”

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: 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 third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. This new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.

The NIW applicant will still need to demonstrate the impact of his or her work (through citations or other evidence that people have used and benefitted from the work), but overall, it appears that the new “Dhanasar” framework broadens the availability of the NIW applicant pool.

If you are thinking about trying to gain a National Interest Waiver, talk to our legal staff today. Schedule a low-cost initial consultation when you call us at (781) 819-0700.

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