A Reexamination of National Interest Waivers for Employment-Based Immigrants

The Immigration Act of 1990 (IMMACT90) separated the existing employment-based immigrant visas from the Immigration and Nationality Act of 1965 into five preference categories, which annually allocated a certain number of visas to foreign workers in each category (Figure 1). While the law allows those applying for an employment-based green card in the first preference category (EB-1) to self-petition for a visa, employers sponsoring foreign workers in the EB-2 and EB-3 visa categories are required to complete labor-market tests administered by the Department of Labor’s foreign labor certification program.

There are exceptions to the labor certification process in the permanent labor-based employment visa system. If the Department of Labor deems that no U.S. worker is available for a given occupation due to generalized labor shortages and hiring a foreign worker for a particular occupation does not adversely impact U.S. workers, those jobs are listed on a “shortage occupation list,” or Schedule A. Currently, Schedule A occupations are classified into two groups: Group I for “physical therapists and professional nurses” and Group II for “aliens with exceptional ability.” Qualifying individuals in the EB-1 and EB-5 preferences and certain EB-4 preference workers can self-petition for an employment-based green-card without an employer and are not required to undergo any labor market tests. Lastly, certain EB-2 preference foreign nationals who qualify for a national interest waiver, can file for a green card without a specific job offer, and therefore forego a labor certification.² In all these cases, documentation proving the qualification for the labor certification exemption category must be filed by the employer or the self-petitioner directly with the Department of Homeland Security.³

Generally, applying for the EB-2 visa category requires an employer to demonstrate that the sponsored employee meets certain general eligibility criteria for the visa as listed above and have an approved labor certification for the position. However, employees may seek an NIW if they meet the EB-2 exceptional ability and advanced degree threshold and if their employment would be in America’s national interest. Qualifying for the NIW circumvents the U.S. employer job offer and labor certificate requirements and, in many cases, allows the foreign worker to self-petition for a visa without a job offer.

The INA does not provide any guidance on what constitutes “national interest,” and Congress has declined to provide any additional clarification. Moreover, agency guidance published in 1991 implementing IMMACT90 states that all national interest waiver adjudications must be made on a case-by-case basis, and that the burden to prove the “prospective national benefit” lies solely on the foreign worker. Therefore, in the intervening years, the specific criteria for NIWs have come from multiple administrative appeals decisions, in particular New York State Department of Transportation (NYSDOT) in 1998 and its successor, Matter of Dhanasar, in 2016.

The AAO ruled in the NYSDOT decision that exceptional ability and a certain amount of training or education alone, general importance to any given occupation and its urgency to the United States, or a shortage of qualified workers in the given field alone, does not meet the threshold for granting an NIW. The AAO opined that NIWs were not a way for self-petitioning foreign workers to simply avoid the labor certification process. In fact, the petitioner must establish how conducting a labor certification process would be damaging to America’s national interest. This decision, adopted by the Immigration and Naturalization Service, made the application process much more cumbersome and dissuaded many applicants.

In 2016, however, Matter of Dhanasar reassessed the NYSDOT case and established a new framework for NIW adjudications using a three-pronged approach. To meet the national interest waiver requirement, the foreign worker must fulfill these criteria:

1. The foreign worker’s proposed employment has substantial merit and is of national importance.
2. The foreign worker is well positioned to advance the proposed endeavor; and
3. Waiving the job offer and labor certification requirements will be beneficial for the United States.

The ruling overturned NYSDOT by decreeing that in certain cases the benefits of the labor certification process in protecting U.S. workers can be dwarfed by factors considered to be of greater importance to the U.S. national interest, and in cases where foreign workers can demonstrate their proposed endeavor as being beneficial to the U.S. national interest, NIWs may be granted.

During the Obama administration, the application of NIWs and who qualifies for these exemptions further evolved, regarding immigrant entrepreneurs. In 2011, the Department of Homeland Security and U.S. Citizenship and Immigration Services published a new policy proposal allowing entrepreneurs to apply for a green-card using the EB-2 visa category and qualifying for the NIW if their business endeavors are deemed in the national interest of the United States. The administration stated that this policy maneuver was part of its Start-Up America initiative that would help the United States attract and retain exceptional entrepreneurial talent and spur job growth.

Since U.S. immigration law generally requires that foreign workers be sponsored by their respective employers to apply for a green card, foreign-born business owners and entrepreneurs find it difficult to obtain labor certification, since their ownership interest in the employing company makes it difficult to conduct a “fair” test of the U.S. labor market.⁴ Allowing business owners an opportunity to self-petition for an NIW under the EB-2 visa category would simplify the process for many entrepreneurs, though they would still need to fulfill specific requirements. However, under the proposed regulation, certain types of entrepreneurship activities would be “deemed” to be in the national interest.

During the Trump administration, the entire program was almost rescinded and the program’s effective date was put on hold. The rescission of the program was considered under the larger executive authority on border security and immigration enforcement. However, as of May 2021, the Biden administration was considering relaunching the program in an effort to reduce barriers to U.S. immigration and allow entrepreneurs to contribute to the economy.

The evolving nature of the NIW and what constitutes matters of national interest in immigration policy has made the process of issuing NIWs for EB-2 visas convoluted. Even with Matter of Dhanasar’s clarification in 2016, the United States lacks a proper definition for what constitutes occupations or employment-based activities that are in the U.S. national interest. The appeals body’s general description of the national interest statute leaves much open to interpretation and allows USCIS wide discretion in these cases.

The ambiguous definition of national interest also gives the executive branch and the president authority to define national interest as the administration sees fit. This makes the definition of what constitutes “national interest” as related to immigration even more precarious, as well as subject to change based on varying presidential policy perspectives. Based on the national interest waiver rule for entrepreneurs under the Obama administration, any endeavor that helps the United States attract and retain talent that would be beneficial for the United States could qualify. That definition of national interest could also potentially include exceptional students who have the potential to contribute to the United States (if they also meet the definition of advanced-degree professional or exceptional ability in the EB-2 category).

Without congressional action to specify or create new categories for entrepreneurial immigration or other immigration in the “national interest,” we could expect continued efforts by various administrations to tailor the use of this category to meet various policy goals it may have. This could include novel interpretations that change from administration to administration hurting the long-term stability of the program. To make it sustainable, Congress could establish a framework that clearly delineates the parameters for NIWs. These parameters would establish a framework under which waivers can be administered, making adjudication of the process easier. Moreover, the framework would help define how immigrants would qualify for the waivers, making the application process simpler to navigate. Relying on AAO precedence and adjudications policy memos have made the program convoluted and bureaucratic, thrusting the responsibility of administering NIWs on individual adjudicators. A clear definition of the NIW program would take the pressure off the executive branch to define the program as it sees fit, swinging like a pendulum with each administration. If the program is to evolve to address future U.S. immigration needs, Congress must act on defining what the foundation of the program must be.

^{1 The Administrative Appeals Office may adjudicate motions, certifications, and appeals related to over 50 different type of immigration cases and independently reviews USCIS’ field office decisions and revoke approval of certain petitions. AAO most often issues non-precedent decisions based on current law and policy in individual cases and the USCIS director may designate some of those decisions to serve as precedent in future cases involving the same issue.
2 Immigration and Nationality Act (INA) Section 203(b)(2)(B)(i), 8 U.S.C. §1152(b)(2)(B)(i).
3 Labor certification applications, when needed, are filed with the Employment and Training Administration within the Department of Labor.
4 This rule was set out by the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA), the DOL’s appellate adjudication office for labor certification decisions, in Step-by-Step Day Care LLC, (Sept. 25, 2015).}