Matter of Dhanasar: USCIS’ new case to judge National Interest Waivers
On December 27, 2016, the US Immigration Administrative Appeals Office (“AAO”) gave us a holiday present in the form of the brand new legal decision Matter of Dhanasar as the new test for judging I-140 EB-2 National Interest Waiver (NIW) petitions. The new decision replaces the previous Matter of New York State Dept. of Transportation (NYSDOT) three-prong test that had been the previous law for evaluating NIW cases.
The Dhanasar decision lays out the following three pronged test for NIW applicants to qualify for a waiver of the job offer requirement and that USCIS may grant a national interest waiver if the petitioner demonstrates:
(1) that the foreign national’s proposed work 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
Immigration will still focus on the importance of the individuals work on their field of national importance in addition to the impact of the individual’s past history of impactful work and contributions. The decision also placed emphasis on “educational background, skills, knowledge, record of success, 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.”
All of you will be happy to know that the new Dhanasar standard no longer places an emphasis on an individuals influence by using publications and citations as a primary factor. Rather, immigration highlighted evidence such as government funding, awards, media reports and membership.
Q: What is the EB-2 Category?
A: EB-2 is the immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes “members of the professions holding advanced degrees or their equivalent”, and “individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States”. Applicants (with the exception of applicants applying for an exemption known as National Interest Waiver) must generally have an approved labor certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker (form I-140) with the United States Citizenship and Immigration Services (USCIS).
Q: Does filing for a National Interest Waiver Petition require a job offer?
A: No, the National Interest Waiver, does not require a job offer or U.S. employer support, if your contributions are deemed to benefit the United States national interest. Because neither the statutory law nor USCIS regulations have defined what “national interest” means, it allows you the opportunity to showcase your talents. Our attorneys at Casseus Law are here to assist you in putting forth the strongest petition possible.
Q: How does USCIS determine who should get a National Interest Waiver?
A: Your credentials. There is no golden rule that determines who is eligible for a National Interest Waiver. Our attorneys will closely evaluate your credentials using our extensive library of successful National Interest Waiver cases. We consider the following factors in evaluating our clients:
- Graduate Degrees: It is no surprise that USCIS favors those individuals with Masters and Ph.D. degrees. It is easy for a hearing officer to objectively determine that Masters and Ph.D. degrees are advanced degrees. NIW candidates working towards their Ph.D.’s, that have already made great advances in their graduate studies have been approved for National Interest Waiver green cards. Don’t disqualify yourself if you only have a master’s degree. There are applicants with master’s degrees who have successfully attained their green card, based on their exceptional work and discoveries.
- Is your work published? USCIS likes to see that you have been recognized by your peers in the field. Have you published peer-reviewed articles? Have you given conference presentations or poster session? Do you have approved patents that have been licensed?
- Don’t let your number of citations keep you from applying! Your number of publications and citations are a factor in getting your NIW case approved, but it is still possible for you to obtain your NIW with few or NO publications. Your letters of support from independent experts in your field will play a key role in describing how your work is national in scope, how your work is influential to the field, and how the US would be adversely affected if you were not granted the waiver.
- Your work must be influential! The number of citations to your work most easily measures your influence on the field. Citations are key in this process. As stated above, a minimal citation record does not mean that you cannot obtain a National Interest Waiver. The Office of Administrative Appeals (AAO) has granted many applicants’ NIW petitions without citations. In lieu of citations, and articles, USCIS will accept evidence of your influence in the field including media reports of your work, awards, and requests for your technical advice or reprints of your work.
- Is your work important to the United States? In order to qualify for the waiver, we will assist you in explaining how your field of research is important to the nation as a whole, not just one geographic region. Your work cannot just benefit one state; you must show that your work has benefited the United States as a whole.
- Are Your Qualifications Unique? The importance of this requirement cannot be understated. You, as the National Interest Waiver petitioner must have qualifications that make it such that your expertise entitles you to waive the U.S. Department of Labor Certification process. At Casseus Law, we take our time to evaluate your resume, your published work and other factors to determine whether you are a good Matter of Dhanasar NIW candidate. Once we determine that you are a good candidate, we make sure to assist you in drafting persuasive letters of support from your peers that showcase the fact that your work and qualifications are unique. We will articulate in your petition that based on your education, unique skills, and experiences that you have already benefitted the US National Interest and your field to a degree that exceeds minimally qualified candidates. We will also establish your uniqueness by showcasing your peer-reviewed articles, awards, memberships in societies, media reports, and other persuasive evidence that articulates your unique talents.
- Letters of Recommendation. Our main goal is to assist you in identifying 6 individuals in your field, who have attained a level of success, who can speak definitely about your accomplishments. Most applicants get letters from their principal investigators PIs, other professors in their field, supervisors, colleagues, and independent experts, who are familiar with their published research results. These letters are the backbone of your petition as they help to prove that you deserve a National Interest Waiver. Your recommenders will provide a first-hand account of the significance of your work and provide the basis for how your unique work is within the national interest. The letters also explain that your abilities are superior to your peers with comparable education and experience, and that requiring a labor certification for you would be contrary to the national interest.
- Independent Letters of Recommendation. We cannot stress the importance of independent letters of recommendation enough! These letters are especially persuasive in showing USCIS that even people who have never worked with you, or know you personally, that your work is unique and has been recognized outside of your immediate sphere of influence. The independent letters will also help to establish that your work will substantially benefit the US national economy, cultural or educational interests, or welfare of the US. We make sure that at least 4 of your letters are recommendation come from independent experts.
We will help you document that your skills benefit the United States. At Casseus Law, we will work tirelessly to ensure that your petition contains all of the evidence of your work, and the influence that your work has on your field of research. Your final petition will contain copies of your awards, your first authored publications, peer-reviewed articles, co-authored articles, your record of citations of your work, copies of relevant media reports, and any other evidence that is relevant to put forth the strongest National Interest Waiver petition possible.
Q: How does USCIS determine who is qualified for a National Interest Waiver?
A: A waiver is considered to be in the national interest if the petitioner can establish, based on Matter of Dhanasar that:
- The foreign national’s proposed work endeavor has both substantial merit and national importance;. This requirement applies to most areas of scientific research. At Casseus Law we study your field and work with you to clearly explain the importance of your work to the US. In Matter of Dhanasar, the court did find that the petitioner’s work in aerospace engineering is of both substantial merit and national importance. Letters of recommendation and supporting evidence will demonstrably show that your research benefits society
- The foreign national is well positioned to advance the proposed endeavor. We will work with you to show USCIS that your are in a strong position to advance your work and that your work has already benefitted your field and is of benefit to the US. Our lawyers are skilled in helping you to highlight the fact that your contributions have been used by your peers in various parts of the United States and outside of the US.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. At Casseus Law, we work with you and your recommenders to present the fact that your unique skills and past accomplishments allow the labor certification process to be waived on your behalf.
The Casseus Law Pledge
We pride ourselves in our close analysis of your credentials. We read your published articles, your resume, and we do a comprehensive Google search to learn about you and your work. We do this to ensure that we assist you in identifying whether you meet the requirements for obtaining a waiver. Do not despair if we identify you as not being a strong candidate. We will work with you to identify ways to increase your chances of applying at a later date. Our main goal to ensure that you obtain your desired results.
Requests for Additional Information
If USCIS requests additional evidence (RFE) on your NIW application, we will carefully review the request and will supply USCIS with the additional evidence. As previously stated, there is no cost for RFEs. We have never had a case denied. To the extent that your case is denied, we will review the evidence and will conference with you before taking the next step. We will evaluate your matter and will decide if it is practical for you to appeal the denial to AAO. We will assist you in seeking other alternatives, such as filing a new petition in the same or a different classification.
Our office is committed to securing the best possible result for all of our clients. We will work with you through every step of the process. We will also provide advice and will keep you up to date with all of your case developments.
If you are interested in a free evaluation of your credentials, please e-mail your full resume or curriculum vitae to us at firstname.lastname@example.org. Your confidentiality is important us. Any information that you send to us through this e-mail address is for the purpose of evaluation only. All information we receive is strictly confidential.
To file a NIW petition, an applicant with an “an advanced degree” or “exceptional ability” must prove that her credentials and past achievements will enable her to find employment in “an area of substantial intrinsic merit”. The experience of the applicant must provide a benefit to the U.S and must be national in scope. Lastly, the applicant must demonstrate that his or her expertise in the field warrants the waiver of the labor certification process because it is in the interest of the United States.
The fields that have been approved by U.S. Citizenship and Immigration Services (USCIS) include, but are not limited to: