Virginia, US
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| Jenna Robinson

Dhanasar Decision: A Paradigm Shift for Green Card Aspirants

Immigration was a hot topic of conversation both during and after the U.S. presidential campaign. The anticipation and constant chatter overshadowed a monumental precedent decision that was published by the Administrative Appeals Office (AAO) exactly one month prior to President Trump’s Executive Order which temporarily banned nationals from seven countries from entering the United States and put a temporary halt on any intake of refugees. On December 27, 2016, Matter of Dhanasar was published and made available to the public. After nearly 20 years, the highly-criticized NYSDOT standard for National Interest Waiver (NIW) petitions was replaced.

To provide some background for those who aren’t familiar with NIWs, the Immigration and Nationality Act provides a green card (permanent residence) path to qualified immigrants who hold an advanced degree and warrant the waiver of a job offer and the complex labor certification process because their work is considered to be “in the national interest” of the United States. If you’re reading this and wondering “well, what IS in the national interest?” welcome to the club!

An earlier administrative appellate decision called Matter of New York State Department of Transportation (NYSDOT) provided three prongs to evaluate the national interest, but the third prong was the one that created the most heartburn and confusion for both petitioners and adjudicators. The third prong required a petitioner to demonstrate that the national interest would be adversely affected if a labor certification was required for the foreign national. With several different iterations of “national interest” throughout the decision, many were left uncertain about what ultimately was the relevant inquiry. Language such as “national benefit so great as to outweigh the national interest,” “serve the national interest to a substantially greater degree than an available U.S. worker,” and “alien’s past record justifies projections of future benefit of the national interest,” all floated around. Still confused? It’s okay, so was everyone else.

A New Framework for Adjudicating NIW Petitions

Thanks to Dr. Dhanasar and his team who fought to appeal his decision, we now have a new framework for adjudicating NIW petitions—one that provides much greater clarity, and applies more flexibility for both petitioning employers and self-petitioning individuals. Under the new standard, an NIW may be approved if (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well-positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. Although it may sound similar, Dhanasar, lists a number of clear factors to consider for the third prong, including whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification. This is much different from the numerous, varied and ambiguous variations provided in NYSDOT.

Key Takeaways from the Dhanasar Decision

There are several key takeaways from the Dhanasar decision. For example, proposed work no longer has to have a significant economic impact, which provides room for more favorable decisions for professionals involved in clinical research, science, and other areas with no direct or immediate financial significance. Moreover, the impact of the work will not be evaluated based on geographic location; instead, Dhanasar recognizes that endeavors that are focused on one geographic area can still be of national importance. In addition, Dhanasar shifts some scrutiny to the foreign national’s future endeavors, rather than just looking at the person’s past achievements. This is especially important for careers that are in transition (i.e., from clinical to industry research).

This is a big win for immigrants whose work can benefit the national interest, and is thus a big win for the nation. Immigration practitioners have spent years calling on the AAO to vacate NYSDOT, and finally succeeded. It took more than two years to receive the final adjudication, but most would agree that it was well worth the wait! In a time when many feel like the immigration world is caving in on us, this is an opportunity for us to attract more talented individuals from around the world to the United States.

To discuss the ins and outs of what makes a great NIW petition or to learn more, please contact me at jrobinson@fragomen.com