National Interest Waivers – What’s so Special About Them?

Donald Trump’s presidential win brought great uncertainty concerning the flow of immigration. Given that areas such as Silicon Valley brim with technological talent brought by industrious individuals outside the United States, Trump’s pending presidency prompts discussion regarding rigid immigration restrictions and its detriment to including talented, well-educated immigrants in our country’s workforce. However, in late 2016, U.S. Citizenship and Immigration Services (USCIS) paved an increasingly accommodating path for talented immigrants to independently apply for National Interest Waivers (NIWs).

Longstanding Obstacles

For highly educated foreigners eager to live and work in the United States, National Interest Waivers facilitate the process by which one seeks approval to work and ultimately, establish permanent residence through a category labeled EB-2, which focuses on employment. Unfortunately, a stringent test imposed by the USCIS’s Administration Appeals Office (AAO) prevented thousands of promising immigrants from applying for NIWs.

The AAO’s decision to relax its stipulations connects with regulations imposed by the New York State Department of Transportation (NYSDOT). These rigid regulations discouraged many immigrants from self-petitioning for NIWs, though their education and skill set deemed them qualified applicants.

Under the NYSDOT, applicants must:

1. Seek work in a field of “substantial intrinsic merit.”

2. Demonstrate that benefits of work serve a national interest.

3. Demonstrate that disadvantages affect the national interest if the applicant undergoes the more intensive labor certification process.

Though the test contains three stipulations, its inflexibility makes compliance difficult, as seen in Matter of Dhanasar. While showing promise as a talented aerospace engineer from India, Mr. Dhanasar still failed to meet requirements due to the NYSDOT’s rigidity.

The AAO Eases Restrictions

After Mr. Dhanasar’s notification of denial regarding his NIW, the AAO reviewed his case and ultimately agreed to replace rules of the NYSDOT with the following:

1. The applicant’s line of work contains substantial merit and national significance.

2. The applicant is capable, through circumstances and qualifications, to advance his or her line of work.

3. Holistically, waiving requirements related to EB-2 benefits United States interests.

An Exciting Development

The AAO’s decision provides hope that more talented immigrants seek approval to work and live in the United States, particularly within Silicon Valley and beyond. As a result of relaxed restrictions, we anticipate applications from thousands of immigrants for NIWs. Should you or anyone you know have questions regarding immigration and this new development, do not hesitate to contact the Law Offices of Sweta Khandelwal at 408-916-1125.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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