New national interest standard adopted for waiving EB-2 labor certification requirements

The Board of Immigration Appeals on Tuesday certified as precedent a new set of standards established by the USCIS Administrative Appeals Office for establishing whether there is a national interest in waiving the labor certification for EB-2 immigrants, members of the professions holding an advanced degree. These new standards, outlined in the new decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), should make it easier to waive the certification than the earlier standards, which had been in place since 1998.

The new case states that USCIS may grant a national interest waiver if the petitioner demonstrates:

1. that the foreign national’s proposed endeavor has both substantial merit and national importance;
2. that he or she is well positioned to advance the proposed endeavor; and
3. that, on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

Background: EB-2 immigrants qualifying as members of the professions holding an advanced degree are required to obtain a labor certificate unless the petitioner can establish it is in the “national interest” to waive this requirement. The new rules should make it easier to waive the labor certification.

BAL Analysis: The case explains a number of ways in which the new rule will make it easier to support a national interest waiver. First, by changing the criteria from “national in scope” to “national importance,” it clarifies that it is not necessary to establish that the position will have a nationwide geographic impact. For example, the case states that a substantial positive economic impact in an economically depressed area can have national importance even if it is geographically limited. Second, it changes the focus from the nature of the employment to the qualifications—education, skills, experience and knowledge—of the applicant. Finally, it rejects the need to show that national interest would be harmed if a labor certification was required. The case points out that this last requirement was sometimes used to require evidence similar to what would be required in a labor certification, and made it overly difficult for self-employed individuals to qualify. The case states that this last change was made in part to assist entrepreneurs and other self-employed applicants to qualify for the waiver. This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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