In December 2016, USCIS unveiled a standard for adjudicating EB-2 national interest waiver cases.
A decision by USCIS’ Administrative Appeals Office Matter of Dhanasar established a new test for deciding whether a foreign national seeking permanent residence through the EB-2 category may receive a national interest waiver. The waiver discards the need to satisfy the job offer requirement and labor certification requirements of the EB-2 category.
To be eligible for a national interest waiver under the current test, an EB-2 petitioner—either the foreign national or an employer—must show the following three things:
(1) The foreign national’s proposed endeavor has both substantial merit and national importance
Endeavors in a wide range of fields may have substantial merit and national importance. These fields include business, science, technology, culture, health, and education. Local or regional endeavors may have national importance.
An endeavor with significant potential impact to employ US workers or has other substantial positive economic effects, particularly in an economically depressed area, may have national importance. However, the petitioner does not have to show that the endeavor will economically benefit the US.
(2) The foreign national is well positioned to advance the proposed endeavor
The petitioner does not have to show that the endeavor is more likely than not to succeed. And, to determine whether the petitioner meets this part of the test, USCIS will look to
(i) the foreign national’s education,
(ii) the foreign national’s skills,
(iii) the foreign national’s knowledge,
(iv) the foreign national’s record of success in related efforts,
(v) a model or plan for future activities,
(vi) the progress toward achieving the endeavor, and
(vii) the interest of potential customers, users, investors, or other relevant entities or individuals.
(3) It will be beneficial, on balance, to the United States to waive the EB-2 category’s job offer and labor certification requirements
To determine whether the petitioner meets this part of the test, USCIS will, among other things, consider whether the US would benefit from the foreign national’s contributions even if qualified US workers are otherwise available and whether the national interest in the foreign national’s contributions is urgent enough to warrant discarding the labor certification process.
When a foreign national satisfies the EB-2 national interest waiver test, she will be a large step closer to US permanent residency; she may rightfully feel triumphant, like the woman at the center of Jean-Baptiste van Loo’s “The Triumph of Galatea.”