The National Interest Waiver (NIW) is a curious creature in the world of employment-based immigration. The lack of a regulatory framework for NIW adjudications opens the door to creative lawyering, yet its discretionary nature removes the guard rails found with other green card categories.
For the last five years, a precedent decision from the Administrative Appeals Office (AAO), Matter of Dhanasar, has been the primary source of information on how NIW petitions will be adjudicated, and how evidence will be evaluated. Then, on January 21 of this year, USCIS updated its policy manual for NIW adjudications. While the prior text did little more than repeat the Dhanasar framework, the new, longer guidance seeks to i) clarify how STEM graduates and entrepreneurs can use the NIW, and ii) highlight the significance of letters from governmental and quasi-governmental entities. There is much to digest in the updates, but four points stood out to me immediately.
First, petitioners can now expect letters of support from governmental or quasi-governmental entities to be a powerful form of supporting evidence. While such letters would ordinarily be expected to have considerable weight, the explicit reference to them in the policy manual suggests they’ll have even greater importance in future adjudications.
Second, when considering prong two of the Dhanasar framework (whether the foreign national is well positioned to advance their endeavor), STEM graduates now benefit from an “especially positive factor” if their degree is tied to their endeavor and related to: a critical and emerging technology, U.S. competitiveness, or national security. This boost is particularly important since, as my review of NIW appeals suggests, scientists and researchers may find prong two the most difficult.
Third, foreign nationals with advanced STEM degrees also benefit from a “strong positive factor” for the final Dhanasar prong (the balancing test). Specifically, this will apply where i) advanced STEM degree holders ii) are working in a critical and emerging technology, or other STEM area important to U.S. competitiveness, and iii) are well positioned to advance their proposed endeavor. These three criteria create something of a feedback loop since, as noted above, the first two criteria (or a variation thereof) are already considered a strong positive factor in support of the third.
Finally, the updates seek to open the door wider for entrepreneurs. While the AAO had attempted this with the Dhanasar framework, AAO adjudications since suggest entrepreneurs continue to find the standard extremely challenging. In addition to providing helpful examples of the types of evidence entrepreneurs may submit, the manual now contains the following language:
“For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.”
Until now, the value of an entrepreneurial endeavor has generally been measured by its economic impact and/or potential for job creation. With this comment, USCIS suggests that self-employed entrepreneurs who are doing no harm to the U.S. labor market should be looked upon favorably – at least in the balancing test. While job creation and economic impact will remain the most important factors for NIW entrepreneurs, this language raises an additional consideration some petitioners may be able to take advantage of.
It remains to be seen when and how the January 21 policy manual updates impact NIW adjudications. Nonetheless, the manual now provides advanced STEM degree holders and entrepreneurs with a clearer roadmap to the NIW, and perhaps even a couple of shortcuts.