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STEM Immigration: Understanding New NIW Standards

blog15.pngGreat news for foreign nationals who are members of the science, technology, engineering, and medical research (STEM) professions: On December 26, 2017, the AAO issued a new framework for adjudicating National Interest Waiver (NIW) cases which vacates and replaces the standards previously established by Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998). The major benefit of this change is that it creates a more flexible standard overall and creates more availability for entrepreneurs and self-employed foreign nationals.

Under INA Sec. 203(b)(2)(A), immigrants who are members of professions holding advanced degrees or who have exceptional ability are eligible for Green Cards if their services are sought by an employer in the U.S. This means that under INA Sec. 203(b)(2)(A), a qualifying foreign national must be sponsored by a U.S. employer who must go through the Department of Labor's (DOL) labor certification process which can be lengthy and cumbersome.

Under INA Sec. 203(b)(2)(B), this labor certification requirement may be waived-and a foreign national may self-petition without an employer-if it is in the "national interest" to do so. However, the term "national interest" is not statutorily defined. From 1998 to 2016, USCIS employed the standard set out by NYSDOT, which required that:

  • The area of employment is of "substantial intrinsic merit";

  • The proposed benefit of the individual's endeavors is "national in scope"; and,

  • The national interest would be adversely affected if a labor certification were required for the foreign national.

While the first two prongs were relatively easy to meet-except for some confusion over whether "national in scope" referred to geographic impact alone-it was the third prong which was most confusing and difficult to overcome. Within the language of NYSDOT, the third prong had four different explanations creating confusion for adjudicators, clients, and practitioners as to how to meet it.

Under the new framework which was recently issued, the AAO states that "USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:

  1. [T]hat the foreign national's proposed endeavor has both substantial merit and national importance;

  2. [T]hat the foreign national is well positioned to advance the proposed endeavor; and

  3. [T]hat, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification."

Under this new framework, it must first be demonstrated that the foreign national's proposed endeavor holds substantial merit and national importance. This means that the foreign national's profession, at present, holds merit in terms of economic benefit or intellectual growth. Further, the foreign national's proposed endeavor will, in the future, provide benefit to the U.S. The AAO makes note that there is no geographic requirement so a foreign national's work make be local and still have "national importance."

Under the new second prong, the focus shifts from the foreign national's proposed endeavor to his or her personal qualifications and past experiences. This prong focuses on the foreign national's past record of success and any plans or steps taken to realize the proposed endeavor. Under the NYSDOT framework, the focus was on the future benefit that the foreign national would provide. Now, the AAO notes that since it is difficult to guaranty future success, the focus should be on the foreign national's ability to meet their goals rather than the goals themselves.

Finally under the new third prong, it must be demonstrated that, on balance, it is beneficial to the U.S. to waive the job offer requirement and labor certification. USCIS will consider the practicality of obtaining a labor certification for the foreign national, whether the US would benefit from this individual (despite the presence of US workers), and/or whether the foreign national's expertise is urgent enough to forgo the labor certification process. This new prong shifts the focus from showing no-harm to US workers (under NYSDOT) to demonstrating the potential beneficial effects of the foreign national's work.

For foreign nationals who may be interested in obtaining a Green Card with a NIW, it will be important to have a clear and concise plan for what he or she plans to do in the U.S. The proposed endeavor should line-up with the foreign national's previous experience and demonstrate a benefit either to the U.S. economy or intellectual knowledge base. Further, it should be clear from the foreign national's past experiences that he or she is well-qualified to meet these goals and see these endeavors through absent other factors.

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