The National Interest Waiver/Exceptional Ability Category, a sub-category of the EB-2 Classification, was enacted pursuant to the Immigration and Nationality Act of 1990 effective November 29, 1990. The clear intent of Congress in enacting this legislation was to facilitate and encourage highly accomplished foreign nationals to come to the United States. This law recognized our country’s need to remain competitive and at the cutting edge of research and development.
Unfortunately, too few professionals have come to the U.S. since 1990. Of the 1,016,518 persons who immigrated to the United States in 2014, only 4.8% of those obtaining permanent residence were admitted under the “professionals with advanced degrees or aliens of exceptional ability” category. Indeed, on November 20, 2014, Secretary of Homeland Security Jeh Charles Johnson issued a policy memorandum urging the greater utilization of the “national interest waiver” in order to “promote research and development in the United States.” After acknowledging that the National Interest Waiver is “underutilized,” Secretary Johnson directed the U.S. Citizenship and Immigration Services (USCIS) to implement policies that will “promot[e] its greater use for the benefit of the U.S. economy.”
On December 27, 2016, USCIS’s Administrative Appeals Office took steps to facilitate the National Interest Waiver’s more effective utilization by issuing a new analytical framework in the precedent decision Matter of DHANASAR, 26 I&N Dec. 884 (AAO 2016). Matter of DHANASAR vacated the previous precedent decision, Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), in order to “provide greater clarity, apply more flexibility to circumstances . . . and better advance the purpose of the broad discretionary waiver provision to benefit the United States.” Matter of DHANASAR established a new three-pronged test under which immigrant petitioners who meet the statutory requirements will now qualify for a National Interest Waiver if they demonstrate:
“(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 job offer and labor certification requirements.”
This clearer, more flexible framework promotes the National Interest Waiver’s vital role in advancing the U.S. national interest at a time when our country is facing unprecedented threats to our national security and our economic, scientific, and educational preeminence. Indeed, studies show that the U.S. is in danger of losing its premier position as a leader in scientific research. As early as 2010, the Financial Times warned that China had become “the second-largest producer of scientific knowledge and was on course to overtake the US by 2020. . . . China far outperformed every other nation, with a 64-fold increase in peer-reviewed scientific papers since 1981 . . .” Since 2010, China’s rate of scientific production has continued to increase. According to a 2016 National Science Foundation press release, “Between 2003 and 2013, China ramped up its R&D [research and development] investments at an average of 19.5 percent annually, greatly exceeding that of the U.S. . . . China is also playing an increasingly prominent role in knowledge and technology-intensive industries, including high-tech manufacturing and knowledge-intensive services. These industries account for 29 percent of global Gross Domestic Product (GDP) and for nearly 40 percent of U.S. GDP. China ranks second in high-tech manufacturing, where the U.S. maintains a slim lead with a global share of 29 percent to China’s 27 percent.” Moreover, according to Pearson’s most recent global report on education, the U.S. education system is only 14th among developed nations, falling behind competitors such as Hong King-China, Singapore, Russia, Canada, Japan, and South Korea.