The National Interest Waiver (NIW) is part of the second employment-based category (EB2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify. An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest.
In 1998 in the case of New York State Dept of Transportation (NYSDOT), the AAO established a three part test to determine whether an application was eligible for NIW classification. This three part test was the standard used by USCIS from 1998 until the end of 2016.
On December 27, 2016, the AAO establish a new test for evaluating NIW in the case In Re Dhanasar. USCIS may now grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
The AAO appears to have felt that the NYSDOT standard provided a confusing standard that resulted in unequal results for different applicants and thus promulgated a new standard that would result in more consistent adjudications. Loft goal but the results remain to be seen. The AAO spent much of the decision discussing entrepreneur applicants who previously attempted to apply for the NIW category but were having difficulty meeting the NYSDOT requirements. The Dhanasar standard appears to be easier for entrepreneurs to meet but since a majority of applicants through this category are scientific researchers, it is questionable whether this new standard will be more or less difficult. While the court seemed unhappy with the subjectivity of the NYSDOT test, the new Dhanasar test is loaded with subjective standards as well. Therefore any new NIW petitions will have to carefully present their case to USCIS to argue they meet all the new requirements.