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The National Interest Waiver and the Three Prong Test

The National Interest Waiver and the Three Prong Test

Employment is a common method used by foreign nationals to obtain lawful permanent resident ("LPR") status in the United States. Typically, the process involves three steps. First, the applicant must obtain an eligible job offer which generally requires that an employer obtain a labor department certification of need. and other procedural steps and requirements. Obtaining a labor department certification can be a lengthy process. Second, if the job is certified, the employer files a Form I-140 ("Immigrant Petition for Alien Worker") and, third, the immigrant applies for adjustment to LPR status (Form I-485).

However, there is a method that can accelerate the path to LPR status: obtaining what is called a "national interest waiver" ("NIW"). If obtained, an NIW eliminates the requirement that a job offer exists and that there must be a certification by the department of labor.

In 2016, the U.S. immigration services created a new test for when a NIW should be granted. The new test has three legal prongs which are:

  • That the foreign national's proposed endeavor has both substantial merit and national importance
  • That the foreign national is well positioned to advance the proposed endeavor and
  • That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

See Matter of Dhanasar, 26 I. & N. Dec. 884 (2016).

The new test was a welcomed change. The new test turned the focus from less-definable issues with respect to U.S. national interest to how the person seeking the NIW could be of benefit. The new test also stressed national "importance" rather than "security" or "scope." Thus, the test would be easier to meet. Further, the new test recognized that "national interest" was a broad concept that could be found in any field such as science, research, engineering, technology, etc.

With respect to whether a person was "well positioned to advance the proposed endeavor," Dhanasar identified several factors that immigration authorities should consider including education, skills, record of success in related or similar efforts, plans and progress for future endeavors, etc.

With respect to the final prong, the new test recognized that, sometimes, even if U.S. workers were available, the U.S. might still benefit from allowing foreign workers to seek LRP status.

Whether to grant a NIW has been held to be entirely within the discretion of immigration officials, specifically, within the discretion of the U.S. Attorney General. "Discretion" means the Attorney General may grant NIWs, but is not required to grant an NIW even if the Attorney General finds that the applicant is eligible. The discretionary nature of the NIW is important because, as several federal courts have held, there is NO judicial review of discretionary decisions like this. For example, in the case of Mousavi v. USCIS, Case No. 19-1476 (US 3rd Cir. September 21, 2020), the court held that it had no jurisdiction to examine the Attorney General's denial of a NIW. In that case, Dr. Susan Mousavi, a citizen of Iran, got her Ph.D. in mechanical engineering from New York University and lived lawfully in New Jersey with her family for several years. In 2016, Mousavi went to visit her sick mother in Iran. When she left, she had several petitions pending including her I-140 petition for an NIW. While Mousavi was in Iran, her pending petitions were denied. Mousavi challenged the denial of her NIW and eventually filed a lawsuit in federal court. The trial court dismissed her lawsuit stating that the court had no power to review the discretionary decision of the Attorney General's office. The Court of Appeals agreed and refused to reinstate Mousavi's lawsuit.

As can be seen, obtaining an NIW is advantageous. But NIWs are difficult to obtain and there is no judicial review if the petition is denied.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.

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