By David Wilks, Brooke Ireland, and Stephen Yale-Loehr*
In December 2016, the Administrative Appeals Office (“AAO”) of the U.S. Citizenship and Immigration Services’ (“USCIS”) issued Matter of Dhanasar (“Dhanasar”),[1] a precedent decision issuing a new standard for National Interest Waiver (“NIW”) green card petitions for the first time in 18 years.
Typically, a petition in the employment-based second preference immigrant visa category must be accompanied by a certified labor certification from the U.S. Department of Labor. However, the law allows the labor certification requirement to be waived if it is in the national interest.[2]
Dhanasar set forth the following guidelines for determining when it is in the national interest to waive the labor certification requirement:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would benefit the United States to waive the requirements of a job offer and thus of a labor certification.[3]
In setting this framework, the AAO rescinded Matter of New York State Dep’t of Transportation, 22 I&N Dec. 215 (INS Acting Assoc. Comm’r 1998) (“NYSDOT”), which provided the previous framework for adjudicating national interest waivers.
Part of the impetus of rescinding NYSDOT was that the adjudication framework had “proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.”[4] In other words, part of the justification for promulgating Dhanasar was because NYSDOT failed to provide USCIS adjudicators with a framework to approve NIW petitions for entrepreneurs.
Given that entrepreneur NIW adjudications constituted part of the impetus for Dhanasar, this article seeks to assess how Dhanasar has actually impacted entrepreneurs filing NIW green card petitions. To do this, we researched AAO NIW entrepreneur decisions issued since December 2016. We found two non-precedent decisions, both of which were denials. Because it is difficult to draw broad conclusions with such a small sample of cases, the following discusses the evidence presented by the petitioners and how the AAO treated that evidence.
Matter of G-P-C-F-K-, March 8, 2018[5]
The entrepreneur petitioned for an NIW in connection with his engineering simulation business. His business would provide engineering consulting with respect to aerospace vehicles and payloads. USCIS initially denied the entrepreneur’s petition. On appeal, the AAO affirmed the denial, finding the following with respect to the Dhanasar factors:
- Substantial Merit and National Importance
To demonstrate substantial merit, the entrepreneur provided a business plan for his company, along with two letters from potential clients who were interested in purchasing the entrepreneur’s services. Looking first at the business plan, the plan provided details with respect to the types of clients the company would target, the types of services the company would provide, and the software and technology the company would use. With respect to the client letters, the potential clients affirmed that the entrepreneur had worked with the entrepreneur previously, and that they would be interested in purchasing additional services. In providing these documents, the AAO found that the entrepreneur met the standard for substantial merit.
To demonstrate national importance, the entrepreneur asserted:
[My] business has significant potential to employ U.S. workers. After one year in business, I intend to hire at least one additional employee.
However, the record did not include evidence that the company had such potential, or that the company would offer “substantial positive economic effects for the nation.” In addition, the AAO determined that the entrepreneur had not provided evidence that his company would have a broader impact on the industries in which he works. Instead, the AAO found that the impact was limited to the potential customers that might retain the entrepreneur.
For these reasons, the AAO found that the entrepreneur had not demonstrated national importance.
- Well Positioned to Advance the Proposed Endeavor
To meet this requirement, the petitioner provided his resume, academic and professional certification records, documentation of a scholarship he received, letters discussing his previous work, a business plan, financial forecasts for the company, and a bank statement showing over $20,000 in funds for the business. The AAO found that this did not sufficiently demonstrate that the entrepreneur was well positioned to advance the proposed endeavor.
First, the AAO noted that his previous research was not clearly related to the proposed endeavor of the company. Additionally, the AAO could not find “sufficient interest from potential customers, users, investors, or other relevant entities” to demonstrate that the entrepreneur was well positioned to execute the proposed endeavor.
In essence the entrepreneur did not show that his previous work was sufficiently related to the proposed endeavor, or that he had generated enough interest from the industry to indicate that he was well positioned to advance the endeavor. Therefore, USCIS found that the entrepreneur had not met his burden.
- Balancing Factors to Determine Waiver’s Benefit to the United States
Because the entrepreneur had not demonstrated national importance or that he was well positioned to advance the proposed endeavor, the AAO did not determine whether waiving the labor certification requirement would benefit the United States.
Matter of A-R-A-, February 27, 2018[6]
In this case, the entrepreneur sought to purchase personal electronics from U.S. distributors and export them to markets outside the United States. In a prior decision, the AAO found that while the entrepreneur had demonstrated substantial merit and that the entrepreneur was well positioned to advance the endeavor, the entrepreneur had not sufficiently demonstrated national importance. This decision concerned a request for reconsideration of that initial denial, and was thus exclusively concerned with whether the entrepreneur’s proposed endeavor had national importance.
To demonstrate national importance, the entrepreneur provided a business plan, including company hiring, growth projections, and industry analysis. According to the business plan, between 2018 and 2021, the company’s net revenue was expected to grow from $471,104 to $1,155,772. During the same period, the company’s payroll expenses were expected to grow from $521,850 to $928,369.
However, the entrepreneur did not explain how this growth would offer substantial economic benefit to the region where it operated or to the nation as a whole. Nor did the entrepreneur demonstrate how the added jobs would “significantly impact employment levels” at the company’s locations. Additionally, the AAO found that the entrepreneur had not provided evidence, other than his own statement, that his exports of American goods would impact U.S. company market shares in foreign countries, or that the company would produce sufficient shipping volume to benefit the U.S. shipping industry.
Given the above, the AAO dismissed the entrepreneur’s request for reconsideration.
Key Takeaways
In both cases above, the entrepreneurs tried to demonstrate substantial national importance based on the economic benefit from their companies. However, the AAO focused heavily on the national importance needing to be “substantial,” and therefore interpreted Dhanasar to mean that the economic impact from the endeavor on the nation or region must also be substantial to meet the substantial national importance test.
Given this, entrepreneurs with new start-ups are not well suited to argue economic benefit as having national importance. Rather, it appears that the AAO would be more likely to approve a case arguing that the technology or service provided by the entrepreneur’s company is likely to generate substantial interest or impact a substantial need of the nation or industry.
Entrepreneurs should also clearly demonstrate how their past accomplishments directly related to the proposed endeavor of their company. While this may exceed the preponderance of the evidence burden of proof, the AAO appears to want clear proof that the entrepreneur’s past experience relates to what the entrepreneur intends to do in the future.
While two cases alone cannot indicate strong trends, it appears that so far Dhanasar has not drastically lowered the difficulty for entrepreneurs in obtaining National Interest Waiver green cards.
* David Wilks is a business immigration attorney at Miller Mayer LLP in Ithaca, NY. He has helped countless entrepreneurs and new businesses meet their immigration goals. A graduate of Cornell Law School, he currently serves as national vice chair of the American Immigration Lawyers Association (“AILA”)’s USCIS Vermont Service Center liaison committee. He is a member of the US Alliance for International Entrepreneurs (USAIE), which provides comprehensive services and advice to international entrepreneurs.
Brooke Ireland is an immigration assistant at Miller Mayer. She graduated with a bachelor’s of science degree from Ithaca College, and has multiple years of experience working in the immigration field.
Stephen Yale-Loehr is co-author of Immigration Law and Procedure, the leading 21-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School, and is of counsel at Miller Mayer, where he advises entrepreneurs, investors, and businesses. He cofounded USAIE, and chairs AILA’s business immigration committee.
Copyright © 2018 by David Wilks, Brooke Ireland, and Stephen Yale-Loehr. All rights reserved.
[1] 26 I&N Dec. 884 (AAO 2016).
[2] See generally Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Wada, Immigration Law and Procedure § 39.04; Miller Mayer Success Story: National Interest Waiver Green Card Approval (Jan. 17, 2018),(last visited May 14, 2018) (NIW approved for director of strategic engagement for a nonprofit organization that advances public-private partnerships).
[3] Dhanasar, 26 I&N Dec. at 889.
[4] Id. at 888.
[5] https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2018/MAR082018_01B5203.pdf (last visited May 14, 2018).
[6] https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2018/FEB272018_01B5203.pdf (last visited May 14, 2018).