What is being waived?
Individuals seeking employment-based immigration must apply for work authorization before filing the petition. The application needs to be filed by a U.S. employer. That is to say, the alien must have had a job offer. USCIS’s updated guidance dated Jan. 21, 2022, specifies that the national interest waiver is the waiver of the labor certification requirement in Employment-based immigration classification. Usually, this process takes a long time.
The matter of Dhanasar was a significant decision by the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) in 2016. It revised the criteria for obtaining a National Interest Waiver (NIW) under the EB-2 category of the Immigration and Nationality Act.
Before Dhanasar: The NIW process was often complex and required a high burden of proof, making it difficult for many qualified individuals to obtain a green card.
Dhanasar’s Impact:
- Revised Criteria: The AAO established a new three-part test for NIW eligibility:
- Substantial Merit and National Importance: The foreign national’s proposed endeavor must have significant merit and be of national importance.
- Well-Positioned to Advance: The foreign national must be well-positioned to advance the proposed endeavor.
- Benefit to the U.S.: It must benefit the United States to waive the job offer and labor certification requirements.
- Broader Eligibility: This revised framework made NIWs more accessible to a more comprehensive range of individuals, including entrepreneurs and self-employed professionals, who may not have traditionally qualified for an NIW.
Overall, the Matter of Dhanasar significantly simplified the NIW process and made it easier for foreign nationals to obtain a green card based on their contributions to the United States.
However, obtaining an interest waiver is essential to prove, and hesitance is of national importance.