The Evolution of National Interest Waivers: NYSDOT to Dhanasar

The landscape of U.S. immigration law is ever-changing, and one area that has seen significant evolution is the National Interest Waiver (NIW). This provision allows certain foreign nationals to bypass the labor certification process if their work is deemed beneficial to the United States. But how do we define “beneficial,” and how has this definition changed over time? Let’s explore the transition from the New York State Department of Transportation (NYSDOT) standard to the more recent Dhanasar standard.

The NYSDOT Standard: A Restrictive Past

Established in 1998, the NYSDOT standard provided a three-pronged test for evaluating NIWs:

1. The employment is in an area of “substantial intrinsic merit.”
2. The proposed benefit from the individual’s endeavors will be “national in scope.”
3. The national interest would be adversely affected if a labor certification were required for the foreign national.

While groundbreaking at the time, the NYSDOT standard had its limitations. The third prong was particularly problematic, as it required petitioners to essentially prove they were superior to U.S. workers in their field—a challenging and often counterintuitive task.

Introducing the Dhanasar Standard: A Modern Approach

In 2016, the Administrative Appeals Office (AAO) introduced the Dhanasar standard, aiming to provide more clarity and flexibility. The new three-pronged test is as follows:

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.
3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

Key Changes and Their Implications

Broadening the Scope: The Dhanasar standard replaced the term “national in scope” with “national importance,” allowing endeavors that may be localized but still have a significant national impact. This change opened doors for professionals in a variety of fields, from local environmental conservation to specialized medical research.

 Clarifying Merit: While both standards discuss “substantial merit,” Dhanasar offers a more nuanced understanding. It recognizes that merit can be found in various forms, including societal, economic, or cultural contributions.

Focus on the Individual: Dhanasar places greater emphasis on the qualifications and capabilities of the petitioner. It assesses whether the individual is “well-positioned” to advance the proposed endeavor, considering factors like education, skills, and past achievements.

A Balanced Perspective: The third prong in Dhanasar introduces a balancing test, asking whether it would be beneficial to the U.S. to waive the labor certification. This is a more flexible and realistic approach compared to the NYSDOT’s somewhat restrictive criteria.

Why This Matters for You: Understanding these changes is crucial for anyone considering an NIW petition. The Dhanasar standard provides a more accessible and flexible framework, making it easier for a broader range of applicants to qualify. However, the complexity of the NIW process still requires expert guidance to navigate successfully.

Contact BBA Immigration

Are you a skilled professional or researcher considering immigration to the United States? Do you believe your work has “national importance”? If so, the National Interest Waiver could be your pathway to a U.S. green card.

Contact BBA Houston National Interest Waiver Lawyers today for a comprehensive consultation. Our team is well-versed in the intricacies of National Interest Waivers, from the historical NYSDOT standard to the modern Dhanasar framework.

Sources:

justice.gov/sites/default/files/eoir/legacy/2014/07/25/3363.pdf

uscis.gov/newsroom/alerts/uscis-updates-guidance-on-national-interest-waivers

ailatexas.org/wp-content/uploads/2017/01/Stick-a-Fork-in-Me-3-New-National-Interest-Waiver-Prongs.pdf