The EB2 National Interest Waiver (NIW) is a fast-track option to a U.S. green card that allows an applicant to bypass the “labor certification” process that is often lengthy and onerous. This is a special exemption, so the NIW is not available for all kinds of cases, but is granted as a matter of discretion only when the government is convinced that the waiver serves the national interest in that particular case. To qualify, an applicant must satisfy all three prongs of the “Matter of Dhanasar” test:
- The applicant’s proposed endeavor has substantial merit and national importance.
- The applicant is well positioned to advance the endeavor.
- On balance, it is beneficial to the United States to exempt the applicant from the labor certification requirement.
A question we frequently encounter from prospective applicants is whether their activities “giving back” to the professional community by teaching or mentoring junior professionals would be considered an impact to the field to support a finding of “national importance” for the NIW.
Actually, the answer is No. According to prevailing case law, while teaching activities benefit the students who receive such instruction and have substantial merit, the impact does not go beyond these students and have an impact to the field more broadly to the level of national importance.
An AAO case study from November 2022 exemplifies this. The petitioner was a computer scientist and instructor, and had a Ph.D. degree and special expertise in artificial intelligence (machine learning) and graph mining, with sensor network applications. The petitioner proposed to disseminate their knowledge of machine learning to the next generation of American students to enable that generation to keep America competitive in the field of AI.
At first glance, the petitioner’s proposal sounds like it would have national importance by facilitating the competency of American students in a field of science that has such strategic importance to the U.S., AI and machine learning. Surprisingly, the AAO affirmed the denial and found that the potential impact of this work did not rise to the level of national importance, citing the Dhanasar decision, which affirmed that teaching activities did not impact the petitioner’s field more broadly as opposed to the benefits being limited to his students.
In March 2023, the same petitioner filed a motion to reopen and reconsider, and clarified that they would also conduct substantial research in addition to their teaching activities. This time, the petitioner proposed a specific research question on the applicability of machine learning and graph data mining to solve complex problems such as COVID-19 virus spread patterns. Specifically, the petitioner proposed to develop algorithms to mine COVID-19 data to uncover patterns which could be utilized in predicting the spread of the virus more accurately.
Based on this more developed proposed endeavor, the AAO found that the petitioner’s potential research projects in the field of sensor networks and machine learning had broad implications to demonstrate national importance.
As this example illustrates, the same applicant with two different versions of the “proposed endeavor” received completely different outcomes, one failing to meet the “national importance” requirement while the other succeeded.
The NIW is a highly narrative-driven category and strategic framing has an outsized impact on the potential success of an NIW case. Such strategy is where the assistance of experienced counsel could be of great help. To learn more, check out our resources below. You can also set a consultation at a date and time that works for you.
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