On December 27, 2016, the Administrative Appeals Office (AAO) issued a rare “precedent” decision in Matter of Dhanasar, 26 I&N Dwec. 884 (AAO 2016). Gerard M. Chapman, principal at Chapman Law Firm, was counsel for Dr. Mookesh Dhanasar, the applicant, throughout most of his green card case and the entire appeal that resulted in the precedent decision. The AAO issues only a very limited number of such decisions, and in this case, it vacated the last precedent decision on National Interest Waiver (NIW) cases from 1998, Matter of New York State Dep’t of Transp., 22 I&N Dec. 215(Acting Assoc. Comm’r 1998) (“NYSDOT”).
In issuing its decision, the AAO confirmed that the test under NYSDOT was not appropriate for several reasons, and created a new standard that is more practical and likely to be useful for a wider range of applicants, including entrepreneurs, who typically have few, if any, avenues to immigrate to the US. Although the new standard under Dhanasar will be more user-friendly, under that new standard, USCIS (the agency that receives these cases initially) will demand proof of the following: the applicant’s proposed endeavor has both substantial merit and national importance; the applicant is well-positioned to advance that endeavor; and on balance it would be beneficial to the United States to waive the requirements of a job offer and a labor certification application (the first step in a green card case).
The old NYSDOT standard demanded proof that still can be used in cases filed under Dhanasar, so much of the work in an NIW case will resemble the evidence gathered in pre-Dhanasar cases. At the same time, it is significant that the AAO decision contained a number of examples and cited several types of cases in which an NIW application could be approved. For years, petitioners have asked the AAO to replace the standard in NYSDOT, and in announcing the new Dhanasar standard, the AAO gave significant guidance to practitioners and to USCIS that it should be flexible and reasonable in its handling of NIW applications.
The most important aspect of the case is the likely expansion of approvals in NIW cases, which should allow applicants in business, entrepreneurialism, science, technology, culture, health, or education to submit approvable NIW applications. The flexibility of this decision reflects the need for USCIS to adjust to changing conditions in all of these areas, and the AAO should be commended for its vision in announcing the new Dhanasar standard.
Mr. Chapman has been an NC State Bar Board Certified Immigration Law Specialist since 1997, and currently serves as a member of the NC State Bar Immigration Specialization Committee.