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High-skilled foreign nationals pursuing employment-based green cards will have a more-flexible standard to meet, following a Dec. 27, 2016, decision by the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS).
The AAO vacated a 1998 decision outlining the standard test for assessing national interest waiver applications and outlined a new test for determining whether foreign workers in the EB-2 visa category are eligible to have the visa program's job offer and labor certification requirements waived.
"After nearly two decades, the Administrative Appeals Office has eliminated the much-criticized … standard for EB-2 National Interest Waiver green card cases and replaced it with a new, much more realistic one for applicants," said Greg Siskind, a partner with immigration law firm Siskind Susser, based in the Memphis, Tenn., office.
Normally, EB-2 petitions must include documentation certifying that the employer has advertised the position, meets prevailing wage requirements, and can show there are no able, willing, qualified and available U.S. applicants to fill the position.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
The AAO said it was adopting a new framework that it believes "will provide greater clarity, and apply more flexibility to … petitioning employers and self-petitioning individuals, and better advance the purpose of the … waiver provision to benefit the United States."
Under the previous standard, petitioners had to show that the worker's employment was in an area of substantial merit; the work's benefit would be national in scope; and that the national interest would be adversely affected if the petitioner had to test the labor market for U.S. workers. Critics of the 1998 standard said the test was too subjective and restrictive and that it led to a high rate of denials.
The AAO found the third prong of the test—that the petitioner must "demonstrate that the national interest would be adversely affected if a labor certification were required"—as being the most problematic, Siskind said. "Trying to make applicants show a national interest if they skip a process to recruit unidentified U.S. workers doesn't make sense, particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest if a labor certification is bypassed, something that it noted is not in the statute and unnecessarily narrows … discretionary authority under the Immigration and Nationality Act."
The new standard essentially keeps the factors relating to substantial merit and national importance of the work and adds that the "foreign national is well-positioned to advance the proposed endeavor" and "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."
To determine whether the foreign worker is qualified to take on the work, USCIS will look at his or her education, skills, knowledge, and work experience. To meet the final prong of the test, "the AAO is directing USCIS examiners to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest," Siskind said. "Key here is that, unlike [the previous standard], the applicant need not show a harm to the national interest if a labor certification is not conducted."
Likewise, a comparison against U.S. workers in the foreign national's field is no longer necessary. This "was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals," the AAO said. "This more flexible test, which can be met in a range of ways … is meant to apply to a greater variety of individuals."
USCIS retains discretion over the granting of national interest waivers, and much will depend on how adjudicators apply the new test in practice.
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