National Interest Waiver Legal Standard Overhauled And Revised

The legal standard for obtaining a "national interest waiver" in connection with a 2nd Preference Employment-Based (EB-2) immigrant visa petition has been revised and clarified after 18 years.  

On December 27, 2016, the Administrative Appeals Office of USCIS handed down a landmark decision - Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - in which the agency's appeals unit pronounced a new legal framework for adjudicating NIW petitions: 

"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."

In so doing, the AAO vacated Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), an 18-year-old decision that has been the most important legal authority for NIW petitions.

The new legal standard provides more clarity and flexibility which will prove beneficial to qualified visa applicants.