This blog post was first published on January 12, 2017. 

Last month’s decision in the Matter of Dhanasar (26 I&N Dec. 884 (AAO 2016)) by the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) has vacated the old framework of adjudicating national interest waivers for EB-2 visa petitioners and adopted a new framework that provides more flexibility to self-employed foreign entrepreneurs.

The Old Framework for Assessing Eligibility for “National Interest Waivers” Posed Difficulties for Self-Employed Foreign Entrepreneurs

The EB-2 is an Employment-based visa that leads to a Green Card (legal permanent residency). To be eligible for the EB-2 visa, petitioners must either possess an Advanced Degree (with some exceptions) or be able to demonstrate “exceptional ability” in the sciences, arts or business. In order for a foreign national to receive the EB-2, the petitioner would have to obtain a labor certification from the U.S. Department of Labor for the job offer. The labor certification demonstrates, among other things, that the Department of Labor has determined that there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the job. If it is granted, the employer would then file a petition requesting the EB-2 classification.

The job-offer and subsequent labor certification requirement can be waived as a matter of discretion by USCIS when it deems it to be in the national interest. It is under this “national interest waiver” that self-employed foreign entrepreneurs could petition for a EB-2 classification. The framework, however, for adjudicating their eligibility was very ambiguous and resulted in the misinterpretation of what evidence needed to be submitted by the petitioner and what evidence needed to be evaluated by the adjudicator.

Under the old framework, there were two requirements that had to be satisfied in order for USCIS to use its discretion to grant the waiver: 1) the the petitioner (the Employer) must demonstrate that the beneficiary (the foreign national) qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability; and 2) the petitioner must establish that it would be in the national interest to waive the job-offer and labor certification requirement.

The challenges faced by self-employed foreign entrepreneurs was a result of the ambiguity of the third prong of the second requirement, which required the petitioner to demonstrate that U.S. national interest would be adversely affected if a labor certification were required for the foreign national. The AAO found the third prong of the national interest waiver requirement to be confusing for both adjudicators at USCIS and petitioners, as well as contradictory to the intent of the waiver itself. Having the petitioner present evidence of the labor market in response to the requirement of demonstrating the adverse effect of the labor certification, contradicted the intent of the national interest waiver, which was to waive the need for labor certification.

The AAO also acknowledged the framework hinder the applicability of waiver to self-employed foreign entrepreneurs. Not only did the AAO find the third prong difficult for both petitioners and adjudicators to present and evaluate respectively, – it stated in its December 27th, 2016 opinion that the old framework, “…has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.” (Dhanasar at 888). Additionally, adopting a new framework for the national interest waiver supported AAO’s long held acknowledgement that, “…there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification.” (Dhanasar at 888).

The New Framework for Evaluating National Interest Waivers Could Provide More Opportunities for Self-Employed Foreign Entrepreneurs

The new framework adopted to assess eligibility for the national interest waiver is intended to, “…provide greater clarity, apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals and better advance the purpose of the broad discretionary waiver provision to benefit the United States.” (Dhanasar at 888-9). Under the new framework, foreign nationals who qualify under the EB-2 visa category and are seeking the national interest waiver would be required to demonstrate by a preponderance of the evidence that 1) their specific endeavors in areas of business, entrepreneurialism, science, technology, culture, health, or education has substantial merit and national importance; 2) they are well positioned to advance the proposed endeavors; and 3) that, on balance, if would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. (Dhanasar at 889).

The new framework allows USCIS to evaluate a number of factors when exercising their discretion to determine whether waiving the job offer and thus labor certification process would, on balance, be beneficial to the United States. Petitioners seeking waivers are no longer required to demonstrate harm to the national interest or make comparisons against U.S. workers in the petitioner’s respective field – in other words, do some variation of the labor certification.

More Discretion Means More Possibilities for Self-Employed Foreign Entrepreneurs to do Business in the U.S. 

The new framework allows USCIS to use its discretion to provide national interest waivers to self-employed foreign entrepreneurs who qualify under the EB-2 visa classification. As noted by the AAO in the Dhanasar opinion “this more flexible test, which can be met in a range of ways…is meant to apply to a greater variety of individuals.” (Dhanasar at 891).

In adopting the new framework, the AAO seeks to address the problematic challenges to certain petitioners, such as self-employed entrepreneurs, whose entrepreneurial endeavors would more likely than not be beneficial to the national interest of the U.S.