The Dahanasar Standard: 3-Prong Test
The National Interest Waiver, under the EB-2 category, is popular because it allows applicants to apply for permanent residency (a green card) without a job offer and without the time-consuming PERM process. Previously, USCIS strictly followed the "NYSDOT" Standard. As of December 27, 2016, USCIS implements the new "Dhanasar" Standard. This is broken down into a three-prong test.
1) The foreign national’s proposed endeavor must have both substantial merit and national importance;
Here, the foreign national may put forward evidence of their work creating a significant or immediate impact on the US economy. Yet, this is not required. Thus, if the foreign national's endeavor was related to research, science, philosophy, and did not have any immediate economic benefits, but rather educational and intellectual benefits, it still may qualify.
2) The foreign national is well-positioned to advance the proposed endeavor;
Here, the foreign national, as an individual, must illustrate that they are qualified to further their proposed endeavor. In order to determine this, it is a holistic test is conducted. This test weighs a number of factors, including but not limited to: educational background, skills acquired, a record of success in related or similar fields, plans or proposed models for the endeavor, and progress thus far.
3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements;
The National Interest Waiver does not require a job offer nor a labor certification. The labor certification process can take up to a year or more after recruiting and the prevailing wage determination is issued. Thus, the NIW is one of the fastest ways to get an employment-based green card. When USCIS adjudicates a case, they will evaluate whether the foreign national meets this prong by determining whether it would be impractical either, for the foreign national to secure a job offer or for the petitioner to obtain a labor certification. Furthermore, even if USCIS was to assume that there were other qualified workers in the United States, who are similarly situated to the foreign national, USCIS will continue to weigh whether the United States would still benefit from the foreign national's contributions (past and future). Lastly, the urgency of the foreign national's proposed endeavor must be sufficient to forgo the labor certification process.
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Please note, that each of the above factors and evidence submitted is taken together and weighed on a balance. Every case and applicant is unique. This is also true for each adjudicating officer that receives a National Interest Waiver case. The most important thing in this process is that you have a knowledgeable attorney evaluating and preparing your case.
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Immigration law can be complicated and this article does not cover all the issues regarding the National Interest Waiver. These cases can be extremely complex, and a single misstep could potentially lead to a deportation or other immigration penalties. If you have any questions regarding your immigration case, please do not hesitate to contact our office.
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