Increased immigration opportunities for individuals of exceptional ability
There are increased opportunities for individuals of exceptional ability to immigrate to the United States based on new national interest waiver rule after the US Department of Homeland Security issued on December 27, 2016, designated the Matter of Dhanasar decision as precedent.
Summary
The new rule means that USCIS may grant a national interest waiver if the petitioner demonstrates:
(1) that the foreign national’s proposed endeavor has both (a) substantial merit and (b) 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 requirement of a job offer and thus of a labor certification.
The employment-based second preference immigrant visa category (EB2) includes individuals of exceptional ability who can self-petition to immigrate. That means they sign their own immigrant petition and do not need a sponsoring employer. Further, the normal requirement of an employer obtaining an alien employment certification from the US Department of Labor can be waived on a showing that the waiver is in the national interest.
Analysis
The new rule states that “substantial merit” may be in a range of areas, citing business, entrepreneurialism, science, technology, culture, health, or education, research, pure science, and the furtherance of human knowledge as examples. Showing the potential to create significant economic impact may be favorable, but is not required.
“National importance” focuses on potential prospective impact, rather than geographic terms. National or global implications are relevant, but even a ventures that focus on one geographic are of the US may qualify.
The requirement that the immigrant be well positioned to advance the proposed endeavor focuses on the immigrant. Relevant factors include education, skills, knowledge, and record of success in related or similar efforts, plan for future activities, and the interest of others (e.g., potential customers, users, investors).
The benefit to the US is an analysis of both:
- Impracticality of securing a job offer or alien employment certification; and
- Benefit of the immigrant’s contributions to the US warrants foregoing the alien employment certification.
Matter of Dhanasar
The immigrant in Matter of Dhanasar held a PhD in Engineering, as well as Master’s degrees in Mechanical Engineering and Applied Physics. His research focused on hypersonic propulsion systems and computational fluid dynamics. He developed a validated computational model of high-speed air-breathing propulsion engine and a novel numerical method of calculating hypersonic air flow. He intended to work in air and space propulsion systems R&D at university, as well as supporting teaching activities in STEM disciplines.
The US Citizenship and Immigration Services denied the immigrant petition, but that decision was reversed on appeal to the Administrative Appeals Office. The AAO found there was both substantial merit and national importance to the immigrant’s work due to potential use in military and civilian applications, advances to scientific knowledge, and American national security and competitiveness applications. The high level of accomplishment to date by the immigrant was found to show benefit to the US even assuming that other qualified US workers are available.
Matter of New York State Department of Transportation
The new ruling vacates the AAO’s decision in Matter of New York State Department of Transportation, which had been in effect since 1998. That case severely limited self-sponsored EB2 due to a restrictive interpretation of the national interest waiver requirements, which was often misinterpreted by the USCIS to require the very labor market test that was intended to be waived.
Impact
The new ruling makes the self-petition EB2 national interest waiver much more widely available. As a result, we anticipate a significant increase in filings, including in some cases where the self-petition EB1 extraordinary ability immigrant visa category might be in consideration. On the other hand, the EB2 category remains oversubscribed with long waiting periods for immigrants born in mainland China and India. These individuals will continue to shun EB2 in favor of the more stringent requirements of EB1.
The complete text of Matter of Dhanasar can be found here.
