What is a National Interest Waiver?
Preliminary Note: The following discussion examines National Interest Waiver, other than that for foreign physicians. The nature of NIW for foreign physicians is different and requires a separate discussion.
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Because this classification requires that the individual’s services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.
Section 203(b) of the Immigration and Nationality Act sets out this sequential framework:
(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 –
(i) National interest waiver…. [T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
While neither the statute nor the pertinent regulations define the term “national interest,” the Administrative Appeals Office of the USCIS set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates:
(1) that the foreign national’s proposed endeavor has both substantial merit and national importance;
(The first prong, substantial merit, and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.)
(2) that the foreign national is well-positioned to advance the proposed endeavor;
(The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well-positioned to advance the proposed endeavor, we consider 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; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.)
(3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
(The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, USCIS may evaluate 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 factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.)
NIW Waiver for a Physical Therapist was denied despite showing that the PT will create American jobs.
In the case Re: 9317321, AAO (OCT 16, 2020, appeal of Texas Service Center Decision) stated:
The Petitioner argues on appeal that her “field has a problem of shortage of professionals, as well as an excess expenditure with people with balance problems.” She contends that because she “proposes to insert more than one physical therapist in the marketplace, plus create job positions helping the economy, and address a problem which would save the government funds in healthcare,” her proposed endeavor offers broader implications beyond her company’s employees and clientele. The Petitioner further states that she “is availing herself to pursue her PT license in the U.S., as well as creating a business to employ other physical therapists,” and that her undertaking stands to “fill the gap of 33,000 unfilled jobs, one physical therapist at a time.” She also maintains that her proposed work involving “rehabilitation and preventative services … will contribute to reducing] Medicare and Medicaid[’s] astonishing costs related to falls.” Additionally, the Petitioner asserts that her proposed endeavor “will create 5 direct jobs” that this “initial change in economic activity results in other rounds of spending thus creating additional jobs in the region.”
To evaluate whether the Petitioner’s proposed endeavor satisfies the national importance requirement we look to evidence documenting the “potential prospective impact” of her work. Although the Petitioner’s statements reflect her intention to create and operate a mobile physical therapy business, she has not offered sufficient information and evidence to demonstrate that the prospective impact of her proposed endeavor rises to the level of national importance. In Dhanasar we determined that the petitioner’s teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, we find the record does not show that the Petitioner’s proposed endeavor stands to sufficiently extend beyond her business and its clientele to impact her field, the healthcare industry, or the U.S. economy more broadly at a level commensurate with national importance.
Furthermore, the Petitioner has not demonstrated that the specific endeavor she proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation. Specifically, she has not shown that her company’s future staffing levels and business activity stand to provide substantial economic benefits in Florida or the United States. While the sales forecast for [redacted] Mobile Physical Therapy indicates that the company has growth potential, it does not demonstrate that benefits to the regional or national economy resulting from the Petitioner’s undertaking would reach the level of “substantial positive economic effects” contemplated by Dhanasar. Id. at 890. In addition, although the Petitioner asserts that her company will hire U.S. employees, she has not offered sufficient evidence that the area where [redacted] Mobile Physical Therapy operates is economically depressed, that she would employ a significant population of workers in that area, or that her endeavor would offer the region or its population a substantial economic benefit through employment levels or business activity. Nor has the Petitioner demonstrated that the reduced healthcare costs attributable to her company’s future rehabilitation and preventative services stand to substantially affect Medicare and Medicaid savings in Florida or nationally.
In addition, while the Petitioner offered information indicating that the United States faces a shortage of physical therapists, this reported shortage does not render the work of an individual physical therapy business operator nationally important under the Dhanasar framework. With respect to the Petitioner’s intention to work as a licensed physical therapist, the U.S. Department of Labor addresses shortages of qualified workers through the labor certification process. Accordingly, a shortage alone does not demonstrate that waiving the requirement of a labor certification would benefit the United States. Here, the Petitioner has not shown that her proposed work stands to have wider implications in the field of physical therapy or the U.S. healthcare industry. Her proposed work, therefore, does not meet the first prong of the Dhanasar framework.
Because the documentation in the record does not establish the national importance of her proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.