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NEW ELIGIBILITY STANDARD FOR NATIONAL INTEREST WAIVERS: IN MATTER OF DHANASAR
Matter of Dhanasar
On December 27, 2016 USCIS, through its Administrative Appeals Office (AAO), handed down a groundbreaking decision, which will invalidate and replace the analytical framework reached in matter of ny state dept. of transportation, governing eligibility for National Interest Waivers (NIW), BENEFITTING EB-2 foreign nationals applying for permanent residence
USCIS Adopts
The foreign national’s proposed endeavor must have both substantial merit and national importance.
The foreign national must be well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category
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NEW THREE PRONG TEST
In Matter of New York State Dept. of Transportation, petitioner's were required to meet the following three-prong test: #1 A petitioner had to show that the area of employment was of “substantial intrinsic merit" #2 A petitioner was required to establish that any proposed benefit from the individual’s endeavors would be “national in scope" #3 The petitioner was required to demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.
OLD RULE:
WHAT CHANGED?
THE highly criticized and restrictive three prong test reached in the seminal decision of ny state dept. of transportation will no longer govern the adjudication of NIWS Although The substantial merit AND NATIONAL IMPORTANCE requirementS haVE remained the same. DHANASAR HAS REMOVED THE REQUIREMENT THAT THE PETITIONER DEMONSTRATE THAT THE N.i. WOULD BE ADVERSELY AFFECTED IF A LABOR CERT. WERE REQUIRED OF THE FOREIGN NATIONAL
SUCCESS!