Matter of Dhanasar


CHANGE OF THE FRAME FOR NATIONAL INTEREST WAIVER

Matter of Dhanasar. Dec. 2016
U.S. Citizenship and Immigration Services (USCIS) established new criteria for determining eligibility for the National Interest Waiver (NIW) for immigrant visas. The Matter of Dhanasar decision, issued on December 27, 2016, superseded the previous standard set by the Matter of New York State Department of Transportation (NYSDOT) case.
Here's a summary of the key points in the Matter of Dhanasar case for the NIW:
  • National Interest Waiver Background: The National Interest Waiver is a provision within U.S. immigration law that allows foreign nationals seeking an employment-based immigrant visa (EB-2) to waive the labor certification process and job offer requirement if their work is deemed to be in the national interest of the United States.
  • Clarification of the Standard: The Matter of Dhanasar decision introduced a more flexible and balanced standard for evaluating NIW petitions. Under this standard, an individual can qualify for the NIW if they can demonstrate that their work has substantial intrinsic merit and that it benefits the United States as a whole.
  • "Substantial Intrinsic Merit": USCIS clarified that "substantial intrinsic merit" means the work should have inherent value and utility. It doesn't necessarily require immediate economic or cultural impact, but it should have the potential to make a meaningful contribution to the United States.
  • "National Benefit": Our track record The Matter of Dhanasar decision also redefined "national benefit" to encompass a broader range of contributions. It no longer focuses solely on the specific geographic area, industry, or field. Instead, it considers the potential to benefit the nation as a whole.
  • Entrepreneurial Activities: The Matter of Dhanasar clarified that entrepreneurial endeavors could qualify for the NIW if they met the criteria of substantial intrinsic merit and national benefit. This was a significant departure from the prior NYSDOT standard, which had largely excluded entrepreneurial activities.
  • Three-Prong Test:

    The decision laid out a three-prong test to evaluate NIW petitions:

    • a. The foreign national's work must have substantial intrinsic merit.
    • b. The foreign national must demonstrate that they are well-positioned to advance their work.
    • c. The foreign national must show that their work benefits the United States to a greater extent than the average U.S. worker in the same field.
The Matter of Dhanasar decision provided a more flexible and inclusive framework for NIW eligibility, making it more accessible to a broader range of individuals, including entrepreneurs and those whose work may not have had immediate and quantifiable impacts. However, it's important to note that immigration law can change, and USCIS policies may evolve, so it's advisable to consult with an immigration attorney or refer to the USCIS website for the most up-to-date information and guidance on the National Interest Waiver