The Relationship Between Mississippi Phosphate and Dhanasar Pertaining to National Interest Waivers
One of the most intriguing yet complex pathways to employment-based visas is the National Interest Waiver (NIW). This provision allows certain foreign nationals to bypass the labor certification process if they can demonstrate their work benefits the United States. But what exactly constitutes “national interest,” and how has this concept evolved?
The Elusive Mississippi Phosphate Standard
Before diving into the modern framework, it’s crucial to understand some historical context. One of the early benchmarks in NIW jurisprudence was a non-precedent decision known as Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992). Mississippi Phosphate outlined societal benefits supporting an NIW claim, such as improvements in the US economy, wages, education, health care, and more. Though not exhaustive, this list gives insight into INS policy for successful NIW cases. The decision overlooked cultural and scientific benefits. Even though the applicant in the case was recognized for exceptional ability, the focus wasn’t on the national interest value of his services. Subsequently, numerous appeals were filed and decisions overturned.
While the Mississippi Phosphate decision was not binding, it influenced how immigration officers and legal practitioners approached NIWs for years.
The Restrictive NYSDOT Standard
Delving further into the intricacies of National Interest Waiver (NIW) applications, a game-changing juncture emerged with the case “In re New York State Department of Transportation (NYSDOT).” This decision by the Administrative Appeals Office (AAO) introduced three pivotal criteria that have since become cornerstones for NIW evaluations:
The prospective job should inherently possess substantial merit. The NYSDOT case unequivocally acknowledged the role of a civil engineer maintaining bridge infrastructure as meeting this criteria. However, the scope of other professions within this domain remained somewhat undefined.
The benefits ensuing from the employment must have national implications. While the civil engineer’s tasks in the NYSDOT case were deemed nationally impactful due to their ties to the nationwide roadway system, there existed a lack of clarity for professions like public interest lawyers or local educators.
The focus then shifts to the applicant, necessitating proof that their contribution to the U.S. would exceed what a comparably qualified U.S. worker might bring to the table. This criterion has since emerged as a significant challenge for many NIW applicants.
The introduction of these criteria by the NYSDOT was revolutionary. Originally, the NIW’s essence was flexibility, allowing the U.S. to accommodate international professionals in line with the nation’s evolving needs. However, the NYSDOT criteria significantly tightened this scope. Applicants grappled not only with demonstrating their value to the nation but also with the intricate task of negating potential adverse impacts on U.S. workers. This shift has led to a narrower interpretation of who truly serves the “national interest.”
The Modern Dhanasar Standard
Fast forward to 2016, and the landscape changed dramatically with the introduction of the Dhanasar standard. Established by the Administrative Appeals Office (AAO) in the Matter of Dhanasar, this new framework offered a more flexible, three-pronged test for evaluating NIWs:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well-positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
The Dhanasar standard opened the door for a broader range of professionals to qualify for an NIW. Unlike the Mississippi Phosphate decision, which often required a project of “national scope,” Dhanasar allows for endeavors that have “national importance,” a more inclusive criterion.
Why the Relationship Matters
Understanding the relationship between Mississippi Phosphate and Dhanasar is crucial for both immigration attorneys and their clients. The modern Dhanasar framework provides a more nuanced and accessible approach, allowing for a more comprehensive array of fields and professions to be considered in the “national interest.”
For example, under Dhanasar, a researcher working on a localized environmental project could potentially qualify if their work addresses issues of “national importance,” such as climate change. The same environmental project would have been far more challenging under the Mississippi Phosphate standard, which might have required the project to have a broader “national scope.”
Practical Implications for Applicants
If you’re considering applying for a National Interest Waiver, it’s essential to consult with experienced Houston National Interest Waiver attorneys who understand the nuances of the evolving legal landscape. Crafting a compelling NIW petition requires a deep understanding of how the criteria have changed over time and how they can be applied to your unique circumstances.
Contact BBA Immigration
Are you a foreign national with skills, experience, or a project that could benefit the United States? Do you believe your work meets the criteria for “national importance”? If so, you may be eligible for a National Interest Waiver, a pathway that could make your journey to a U.S. green card smoother and faster.
Contact BBA Houston Immigration Lawyers today for a consultation. Our team of experienced attorneys is well-versed in the intricacies of National Interest Waivers, from the historical Mississippi Phosphate decision to the modern Dhanasar standard.
Sources:
justice.gov/eoir/page/file/920996/download
cbkimmigration.com/wp-content/uploads/2022/11/the-new-niw-standard-dhansar.pdf
uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2021/AUG122021_03B5203.pdf
