National Interest Waiver adjudications resume

On March 8, 2017, USCIS confirmed to the American Immigration Lawyers Association ("AILA") that it had resumed adjudication of National Interest Waiver ("NIW") petitions using the new standard imposed by a precedential decision, Matter of Dhanasar.  Adjudications had been temporarily halted while USCIS was awaiting further internal guidance before training its adjudicators and familiarizing them with the new standard. NIWs are a pathway to lawful permanent resident status if an applicant can show his or her work is in the national interest. Under Dhanasar, an NIW applicant must show that the proposed endeavor has both substantial merit and is national in scope, that the applicant is "well-positioned" to advance the proposed endeavor, and that on balance the U.S. would benefit from waiving the job offer and labor certification requirements of the EB-2 category. This new standard significantly eases the NIW process for many applicants, making this a more viable option than it had been under the old standards.

New National Interest Waiver adjudication standard

In a recent precedent decision, the Administrative Appeals Office ("AAO") revised the analytical framework for assessing eligibility for national interest waivers ("NIW") thereby vacating the long-standing test set forth in NYSDOT (Matter of New York State Dept of Transp. 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998).  According to the new decision (Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)), USCIS may approve an NIW if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

 The NIW category is a popular route for many foreign nationals to apply for lawful permanent residence (commonly referred to as "green card" status), provided they can prove they possess an advanced degree and their work meets the criteria outlined above.  Their field of employment may be in a variety of fields, including but not limited to business, entrepreneurialism, science, technology, culture, health, or education.  Notably, the NIW category is one of the few employment-based green card options for individuals to self-sponsor, meaning they may apply and demonstrate how they meet the criteria without an employer formally sponsoring them with an offer of permanent employment. If you would like to explore whether or not you qualify under this new standard, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS adopts recent AAO decision affirming National Interest Waiver category includes medical specialists in addition to primary care physicians

In February the Administrative Appeals Office ("AAO") decided an important case for physicians applying for immigrant visas in the National Interest Waiver category, and on March 9, 2016 USCIS issued a Policy Memorandum officially adopting the AAO's decision as agency policy. In its decision in Matter of H-V-P, the AAO held that medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals or in a VA facility may be eligible for the physician National Interest Waiver category of green cards. This expansion to include medical specialists is a major victory for American communities suffering from a shortage of qualified physicians and foreign-born medical specialists who with to remain in the U.S. If you have questions about whether physicians working for your organization may qualify for a green card in the National Interest Waiver category, please contact one of the attorneys at Iandoli Desai and Cronin at info@iandoli.com or by calling us at 617-482-1010.

National Interest Waiver category & recent court decision affecting physicians

The Administrative Appeals Office ("AAO") decided an important case last month for physicians applying for immigrant visas (commonly referred to as "green cards") in the National Interest Wavier category. In its decision in Matter of H-V-P-, the AAO rejected the Texas Service Center's ("TSC") attempt to change a longstanding agency interpretation based upon a single decision. In most categories of employment-based immigrant visas, applicants usually need a job offer from a U.S. employer. In this recent decision, however, the AAO recognized that the law requires USCIS to waive the job offer requirement for both primary and specialty care physicians who work full-time in an area with a shortage of health care professionals (and meet other requirements not at issue in this case). The AAO concluded TSC's narrow interpretation of the regulation as requiring a specific specialty care shortage certification was inconsistent with past USCIS practice and would "frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas." 

If you have questions about the National Interest Waiver category or visa options for physicians, please contact the attorneys at Iandoli Desai & Cronin P.C. at  info@iandoli.com.