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We are tracking the development of the national interest waiver law since the seminal decision, Matter of Dhanasar.

  1. Introduction

Congress has made available a limited number of immigrant visas to skilled and unskilled foreign workers who want to take a job in the U.S. that local workers do not want or are unqualified to fill.  Such foreign workers are not admissible to the United States, unless their potential employer offers them a job at a wage commensurate with the location, occupation, and the duties of the position, and obtains a labor certification from the Department of Labor that the job is in a shortage occupation.[i]  Before the Department of Labor certifies the job as a shortage occupation for which there are not interested or qualified U.S. workers, the employer must prove that it had tested the U.S. market and that it could not find U.S. workers who are able, willing, qualified,[ii] or available to take the job.  As part of the process, the employer must prove that the employment of foreign workers “will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[iii]

The labor certification process protects jobs for U.S. workers who have the same minimum qualifications, and is in the national interest.  The Attorney General can waive the job offer and the labor certification requirement only in a case where the Attorney General finds that such employment is in the national interest of the United States and outweighs the national interest of protecting U.S. jobs for U.S. workers.  The burden is on the foreign worker to show why granting such a waiver is more important for the national interest than protecting the jobs for U.S. workers who may be willing, able, qualified, and available.

The national interest waiver is only available to “members of the professions holding advanced degrees or their equivalent” or to “people who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States .” [iv]  Because the labor certification process requires a job offer to the foreign worker, a foreign worker cannot self-petition, unless the worker seeks a national interest waiver.  As a threshold matter before seeking a national interest waiver, the worker must show that he or she is a member of the professions holding advance degree or their equivalent, or has exceptional abilities.  The petitioner then must make a separate showing that a waiver of the job offer requirement is in the national interest.

Not every person qualified to engage in a profession or a person of exceptional abilities is exempt from the requirement of a job offer based on national interest.  Nor is the intent of Congress to grant national interest waiver based on the importance of a profession alone.  In a recent decision, Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the Administrative Appeals Office outlined a new framework to apply in deciding whether a petitioner merits a national interest waiver.   The AAO has decided several cases under the new framework.  Review of these cases gives an idea of what the AAO considers as good, better, and best arguments.

This and following articles will review the application of the new framework to the facts of the recent decisions.

  1. The New Framework

Under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the petitioner must meet the following three prongs to establish that the request deserves a national interest waiver:

  • Step 1, description of the endeavor. The foreign national’s proposed endeavor has both substantial merit and national importance.  The petitioner can demonstrate merit “a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education”   An endeavor has a “national importance….because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.”  The impact is not confined in geographic terms but points to broader implications.  Id.  The agency considers the endeavor’s prospective impact.
  • Step 2, qualifications of the alien. The foreign national is well positioned to advance the proposed endeavor.  This prong “shifts the focus from the proposed endeavor to the foreign national.”  The petitioner must establish that the alien is “well positioned to advance the proposed endeavor.”    The agency considers factors, including but not limited to the individual’s education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
  • Step 3, needs of the United States. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  USCIS evaluates factors such as: whether, in light of the nature of the foreign national’s qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer, or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.  In each case, the factors, taken together must indicate that on balance it would be beneficial to the United States to waive the requirements of the job offer and thus of labor certification.

If these three elements are satisfied, “USCIS may approve the national interest waiver as a matter of discretion. “ Id.

Application of the new framework

 This article is first in a series reviewing the application of the new framework to the facts of recent AAO decisions.  We will examine the endeavors, qualifications, and the evidence that each petitioner presented and whether or not the showing was sufficient to secure a national interest waiver.  We will then try to identify what arguments and evidence work and what does not work.   Currently, there have been 21 AAO decisions discussing Matter of Dhanasar.  Based on review of these decisions, here is a general list of arguments that work and that do not.  Cases mainly failed on the “national importance” part of the first prong, and the “well positioned” prong: Continue reading →

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On December 12, 2016, The U.S. Department of Education announced that it will derecognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  On March 15, 2017, the Student and Exchange Visitor Program (SEVP) began issuing notices to SEVP-certified schools accredited by ACICS who had not reported the loss of accreditation to the Department of Education as required by regulations.   ICE states that all schools that were accredited by ACICS  must update their Form I-17 to update its status with a new accreditor, additional information regarding specific programs, or withdraw from SEVP.

According to USCIS and ICE, the loss of recognition will have immediate effect on foreign nationals that are enrolled in English language study programs or are seeking 24-month STEM OPT extension from a school that was accredited by ACICS.

SEVP will not take any action against international students for 18 months from December 12, 2016, if the school is either withdrawn or voluntarily withdraws.  After 18 months the students will have 3 options: Continue reading →

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On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.”  According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations.  This new policy will affect our clients in Chicago and in other cities and states.

USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages.  According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009).  An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position.  An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.

It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage.  USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.”  This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement.  However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.

USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree.  Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.”  The burden is on the petitioner to prove that the position is in a specialty occupation.

Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about: Continue reading →

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President Trump today signed a new Executive Order, explaining the reasons to suspend admission of foreign nationals from certain countries.  The Order, entitled Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States  restricts admissions of foreign nationals from six countries: Iran, Somalia, Yemen, Syria, Libya, and Sudan.  It removes the prior restrictions for citizens of Iran, and exempts permanent residents of the United States.    The Order states that Iraq represents a “special case”.  While [p]ortions of Iraq remain active combat zones”….”the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.”

The Order applies to foreign nationals from these countries who are:

Continue reading →

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On February 20, 2017, John Kelly, the Homeland Security Secretary issued two Memoranda implementing President Trump’s Executive Orders.  The first Memorandum is entitled “Enforcement of the Immigration Laws to Serve the National Interest.”  It implements the Executive Order entitled “Enhancing um Public Safety in the Interior of the United States” that President Trump issued on January 25, 2017. The second Memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” and implements President Trump’s Executive Order “Border Security and Immigration Enforcement Improvements,” issued by President Trump also on January 25, 2017.

The subject of this blog is the first Memorandum, “Enforcement of the Immigration Laws to Serve the National Interest.”

This Memorandum rescinds all prior directives, memoranda, or field guidance, to the extent that they conflict with this Memorandum (“Kelly Internal Enforcement Memorandum”).  There are two exceptions that Secretary Kelly informs will be subject to future memoranda.  The first exception is the June 15, 2012 Memorandum that established DACA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”), and second is the November 20, 2014 Memorandum that tried to establish DAPA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents”), to the extent that these do not conflict with the Kelly Internal Enforcement Memorandum ((because of crimes, gang activities, drug trafficking, or security risk),

The following people then should be exempted from the Kelly Internal Enforcement Memorandum for now.  The June 15, 2012 Memorandum establishing DACA covers the following people:

  • An undocumented person who was under the age of 31 as of June 15, 2012;
  • Who came to the United States before reaching 16th birthday;
  • Who continuously resided in the United States since June 15, 2007, and up to the present time;
  • Was physically present in the United States on June 15, 2012, and at the time of applying for DACA;
  • Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The following people should also be exempted for now under the November 20, 2014 Memorandum.  That Memorandum tried to establish DAPA.  It also removed the requirement that limited DACA only to people who were under 31 as of June 15, 2012 (born  since June 15, 1981).  The November 20, 2014 Memorandum added the following persons yhsy should be currently exempt but subject to future memoranda and to the extent they do not conflict with the Kelly Internal Enforcement Memorandum:

  • An undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident;
  • Who has lived in the United States continuously since January 1, 2010;
  • Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
  • Is not an enforcement priority for removal from the United States under the Kelly Internal Enforcement Memorandum.

The Kelly Internal Enforcement Memorandum Except directs ICE to hire 10,000 officer and agents “subject to available resources” and to take actions “consistent with available resources.” While rescinding any prior memoranda regarding enforcement priorities, the Kelly Internal Enforcement Memorandum sets its own priorities, which includes aliens that are inadmissible or deportable for crimes, are security threat, or who have committed fraud or material misrepresentation for immigration benefits.  The Memorandum also priorities removal of applicants for admission, including people who have been physically present in the United States for less than two years.

The Memorandum further prioritizes removal aliens who:

  1. have been convicted of any criminal offense;
  2. have been charged with any criminal offense that has not been resolved;
  3. have committed acts which constitute a chargeable criminal offense;
  4. have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  5. have abused any program related to receipt of public benefits;
  6. are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  7. in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Continue reading →

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President Trump’s  Executive Order signed on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States”, also affects  Legal Permanent Residents from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.  The Executive Order cites to 8 U.S.C. Sec. 1182(f), which permits the President “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  The Immigration and Nationality Act defines an “alien” as “any person not a citizen or national of the United States.”  8 U.S.C. Sec. 1101(a)(3).  Legal Permanent Residents fall under this definition.  Even though Legal Permanent Residents are not “applicants for admission” unless they have committed certain acts, the broad language of 8 U.S.C. Sec. 1182(f) references “entry” and not “admission” and therefore, the Executive Order will affect Legal Permanent Residents’ entry in the United States.

The Order provides DHS with limited discretion to permit entry to certain aliens on a case-by-case basis.  Sections 3(g) and 5(e) provide for discretion on a “case by case basis” but only if they determine that admission of such person is in the national interest.  Continue reading →

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President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States, which includes a list of violations or acts that may make an alien a priority for removal.  The list describes aliens who are inadmissible or removable for having committed certain crimes, pose security threat, have committed fraud or have willfully misrepresented a material fact to apply for immigration benefits, arriving aliens, aliens who have entered without inspection and have been present for less than two years in the United States.

The order specifically states that the administration will treat as enforcement priority removable aliens (which includes aliens that may have overstayed, or are here unlawfully) if such aliens (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved; (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The order also requires DHS to use a report from sanctuary jurisdictions that refuse to comply with a federal detainer, and to publish on a weekly basis a “list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

The order also seeks from all federal agencies “to the extent consistent with applicable law” to ensure that their privacy policies do not cover aliens other than lawful permanent residents.  In other words, the “personally identifiable information” of aliens (other than permanent residents) that may be on this list will be not be protected.  The Office of Management and Budget (OMB) defines personally identifiable information as follows:  “information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.”

The executive order does not appear to consider DACA recipients a priority, nor people who have been in the US unlawfully for more than two years, unless they have committed a crime, engaged in fraud, abused program to received public benefits, or otherwise present security threat.  There is hope that law abiding undocumented aliens will not be considered as priority for removal now and in the future. Continue reading →

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The Administrative Appeals Office (“AAO”) recently scrapped the “national interest waiver” test of In re N.Y. STATE Dep’t OF Transp., 22 I. & N. Dec. 215 (1998) and replaced it with a new one in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The AAO determined that the test USCIS has been following for the last 18 years was too subjective, and promised that the new framework “will provide greater clarity, apply more flexibility to circumstances… and better advance the purpose of the broadd discretionary waiver provisions to benefit the United States.”   Id. at 888.

National Interest Waiver

To receive a national interest waiver, the petitioner must meet the statutory requirements in Section 203(b)(2) of the Immigration and Nationality Act.  This Section states in relevant part:

(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. —

(A) In General. — Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

(B) Waiver of Job Offer. — The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Under Section A, the petitioner must establish that the alien is (i) either a “member of the professions holding advanced degrees or their equivalent” or (ii) has “exceptional ability” in one or more of the enumerated fields; and (iii) will “substantially benefit prospectively” the national economy, cultural or education interests, or welfare of the United States.  Once the petitioner meets the threshold requirement of subsection A, the petitioner must demonstrate that forgoing the requirement for a job offer and labor certification (a test for availability of U.S. workers) can be “deemed to be in the national interest.”Id. Continue reading →

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The immigration attorneys at Zneimer & Zneimer PC reviewed a noticed the Department of Homeland Security published in the Federal Register that announced the decision of DHS to increase its fees for numerous USCIS applications, effective December 23, 2016.  Even though the notice euphemistically calls the fee increase “adjustment” of fees, the result is a significant fee increase “by a weighted average increase of 21 percent.”  The applications for naturalization will have three levels. The N-400 will increase from from $595 to $640.  DHS will charge no fee to some applicants who have received a waiver or who have served in the military.  DHS will also have a reduced fee of $320 for applicants with family income greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines.  Additionally, USCIS will remove the regulatory provisions that prevent “USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.” The fee increase is substantial and becomes effective on December 23, 2016. This is the first fee adjustment since November 23, 2010.  The new fee must be submitted with all applications “mailed, postmarked, or otherwise filed” on or after December 23, 2016.

Applicants who want to avoid this increase should contact an immigration attorney as soon as possible to ensure that their application is filed before December 23, 2016.

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A foreign national can file an application to become a permanent resident if the foreign national has an immediately available visa.  A petitioner files an immigrant petition on behalf of a foreign national to establish the foreign national’s eligibility to immigrate to the United States and the US government sets aside an immigrant visa for the foreign national based on the approved immigrant petition.  The immigrant petition can be based on family relationship or on employment, and the filing date of the petition with USCIS determines the “priority date” of the foreign national for purposes of visa availability.

USCIS announced that for the purposes of adjustment of status, it will not be bound by the State Department decision, but it will decide every month which date to use – the “filing date” or the “final action date” from the Visa Bulletin. For the month of October, the USCIS will accept adjustment applications earlier as it will use the October Visa Bulletin “filing date” for all family based categories and for most employment based categories.  People who qualify should file as soon as possible before the November Visa Bulletin as the USCIS may change its mind at that time.

Continue reading →

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