Tag Archive for: Matter of Dhanasar

Cyrus Mehta

National Interest Waiver Changes for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization

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By Cyrus D. Mehta and Jessica Paszko*

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) announced that as of January 30, 2023, it would accept premium processing requests for all previously filed and newly filed petitions for National Interest Waivers (NIW) under the Employment-Based Second Preference (EB-2) category. For an additional filing fee of $2,500, USCIS will adjudicate these petitions within 45 days. This premium processing development coupled with last year’s update to the USCIS Policy Manual, which clarified how the National Interest Waiver can be used by science, technology, engineering, and mathematics (STEM) graduates and entrepreneurs, makes the National Interest Waiver more appealing than ever. We last covered the National Interest Waiver five years ago after the Administrative Appeals Office of the USCIS issued its precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which articulated a new National Interest Waiver standard.

As background, the National Interest Waiver is an immigrant petition for lawful permanent residence under the EB-2 category. In the ordinary course, a valid, permanent offer of employment in the U.S. and a labor certification application certified by the Department of Labor (DOL) are mandatory prerequisites to the filing of such an employment-based immigrant petition. However, the Immigration Act of 1990 (IMMACT90) provided that the labor certification requirement in the employment-based second category may be waived and foreign nationals may qualify for the NIW in the sciences, arts, professions or business if they are: (1) members of the professions holding advanced degrees; or (2) foreign nationals of “exceptional ability” who will “substantially benefit prospectively the national economy, cultural or educational interest, or welfare” of the United States, i.e. where the foreign national’s employment is deemed to be in the “national interest.”

In the updated Policy Manual, under the Specific Evidentiary Considerations for Persons with Advanced Degrees in STEM Fields heading, USCIS states, at the outset, that it was particularly interested in persons with advanced STEM degrees fostering progress in three areas, namely (1) “focused critical and emerging technologies”, (2) “other STEM areas important to U.S. competitiveness”, and (3) “national security.”

Critical and emerging technologies “are those are critical to U.S. national security, including military defense and the economy”. To identify a critical and emerging technology field, USCIS prompts officers to consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. Officers may find that a STEM area is important to competitiveness or security in endeavors that will help the U.S. remain ahead of strategic competitors or adversaries or relates to a field that may contribute to the U.S. achieving or maintain technology leadership or peer statues among allies and partners. Moreover, the lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are listed as examples of authoritative lists which officers may consider. The Critical and Emerging Technologies List Update, issued in February 2022, defines critical and emerging technologies as “a subset of advanced technologies that are significant to U.S. national security.” It then goes on to list the critical and emerging technology areas that “are of particular importance to the national security of the United States” as well as a set of key subfields for each identified critical and emerging technology. We encourage readers to view the full list, but note the following subfields: supercomputing, edge computing, cloud computing, data storage, computing architectures, data processing and analysis techniques, distributed ledger technologies, digital assets, digital payment technologies, and digital identity infrastructure.

An indicator of STEM areas important to U.S. competitiveness is inclusion as a priority in the annual research and development priorities memo about the President’s budget issued jointly by the White House Director of the Office of Science Technology Policy and the Director of the Office of Management and Budget. For example, the Memorandum on Research and Development Priorities (PDF) (August 2021) for President Biden’s FY2022 budget, where reference is again made to “critical and emerging technologies” including artificial intelligence, quantum information science, advanced communications technologies, microelectronics, high-performance computing, biotechnology, robotics, and space technologies.

U.S. national security objectives, which includes “protect the security of the American people; expand economic prosperity and opportunity; and realize and defend democratic values”, are outlined in the Interim National Security Strategic Guidance (PDF). The Policy Manual instructs that for purposes of National Interest Waiver policy and adjudications, “national security” refers to these three objectives.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • 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 Policy Manual reiterates that with respect to the first prong as set forth in Matter of Dhanasar, supra, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance. It notes that many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. At the same time though, the Policy Manual makes clear that “classroom teaching activities in STEM” are not, on their own, indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

For the second prong, the person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor. Here, the USCIS officer’s analysis involves assessing whether the person has an advanced degree, such as a Ph.D. which USCIS considers an especially positive factor. But the advanced degree must also be in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S competitiveness or national security. Additionally, taking into account that doctoral dissertations and some master’s theses concentrate on a particularized subject matter, the person’s “scientific knowledge in a narrow STEM area” must also be considered in order to determine whether that specific STEM area relates to the proposed endeavor. Finally, the Policy Manual cautions that a degree in and of itself, is not a basis to determine that a person is well positioned to advance the proposed endeavor, and urges petitioners to submit supplemental evidence, including letters from interested government agencies. Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:

  • Degrees, certificates, or licenses in the field;
  • Patents, trademarks, or copyrights developed by the person;
  • Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;
  • Published articles or media reports about the person’s achievements or current work;
  • Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;
  • Evidence that the person’s work has influenced the field of endeavor;
  • A plan describing how the person intends to continue the proposed work in the United States;
  • A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
  • Correspondence from prospective or potential employers, clients, or customers;
  • Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);
  • Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
  • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
  • Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities);
  • Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
  • Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
    • Contracts with companies using products that the person developed or assisted in developing;
    • Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and
    • Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.

 

Lastly, with respect to the third prong, the Policy Manual reminds us that it is the petitioner’s burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification. In its evaluation of the third prong and whether the U.S. may benefit from the person’s entry, USCIS considers the following combinations of facts contained in the record to be a strong positive factor:

  • The person possesses an advanced STEM degree, particularly a Ph.D.;
  • The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
  • The person is well positioned to advance the proposed STEM endeavor of national importance.

USCIS considers the benefit to be “especially weighty” where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.

The expanded guidance will also benefit noncitizen entrepreneurs under the Matter of Dhanasar standard. They may submit evidence of ownership and a role in the U.S. entity; degrees, certifications, licenses and letters of experience; investments from outside investors; participation in an incubator or accelerator; awards or grants; intellectual property such as patents; published material on the petitioner and U.S. based entity; prospects of revenue generation and job creation; and letters and statements from credible third parties.

In comparison, eligibility under the Employment-Based First-Preference category (EB-1A) can be established through evidence of a one-time, major international award or fulfillment of at least three out of ten criteria. But even after the applicant has demonstrated evidence of at least three criteria, USCIS conducts a final merits determination where it considers the submitted evidence holistically and determines whether the applicant has sustained national or international acclaim and is among the small percentage of individuals who have risen to the top of their field of endeavor. Clearly, to qualify for a National Interest Waiver, one need not satisfy any set regulatory criteria or rise to the EB-1A level of acclaim or level of expertise, which can be quite difficult to establish.  Like the EB-1A, individuals may self-petition for the National Interest Waiver under EB-2 and need not be beholden to an employer.

The NIW on its face will have little utility for India or China born beneficiaries of I-140 petitions in the EB-2. The EB-2 for both these countries is retrogressed, and more so with India which according to the February 2023 State Department Visa Bulletin, the Final Action Date is October 8, 2011. Still, even if an Indian born EB-2 beneficiary obtains the NIW they will not be bound to any employer to file a new labor certification,  and can remain in H-1B status from employer to employer until their Final Action Date becomes current.  Another advantage of the NIW under EB-2 is that dependent spouses in H-4 status can receive work authorization once the I-140 on behalf of a principal beneficiary is approved and the dates for the country remain retrogressed. Currently the EB-2 is retrogressed worldwide at November 1, 2022. Therefore, in addition to H-4 spouses of India born beneficiaries of I-140 petitions, all H-4 spouses would be entitled to work authorization once the I-140 under the NIW is approved. See 8 C.F.R. § 214.2(h)(9)(iv).   Given that there is now premium processing, the speed with which an H-4 spouse can obtain an EAD through the NIW than through the traditional employer sponsored labor certification process is significant.

Although the USCIS has broadened the evidentiary criteria for NIW petitions, it is still important to demonstrate that the national interest of the US will be advanced under the standards set forth in Matter of Dhanasar.  As the EB-1 has become muddied with the need to satisfy the final merits determination, the NIW may be easier to win under the expanded guidance for individuals in STEM and entrepreneurs and may be worth considering if one is born in a country other than India. However, even for those born in India, the NIW may have a significant benefit as it would allow the H-4 spouse to get employment authorization more rapidly.

(This blog is for informational purposes, and should not be relied up as a substitute for legal advice)

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

 

 

Cyrus Mehta

Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing a Denial of a National Interest Waiver

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Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). Seeking review in federal court under the APA is far more powerful that appealing a denial to the USCIS’s Administrative Appeals Office, which seldom reverses denials. Sometimes, however, a challenge in federal court can get nixed if the court finds that it has no jurisdiction to review a discretionary decision under §242(a)(2)(B)(ii) of the Immigration and Nationality Act.

In Poursina v. USCIS, the plaintiff sadly found out that a federal court had no jurisdiction to review a denial of his request for a national interest waiver under the jurisdiction stripping §242(a)(2)(B)(ii) because the granting of a national interested waiver is inherently discretionary.

INA 242(a)(2)(B) is reproduced below in its entirety:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) of this title

The Ninth Circuit in Poursina v. USCIS relied on INA 242(a)(2)(B)(ii), which requires that Congress must specify n the statutory provision that the decision must be in the discretion of the Attorney General or Secretary of Homeland Security. At issue is whether Congress specified that the issuance of a national interest waiver under INA 203(b)(2)(1)(A) is a discretionary decision.

If a national interest waiver is granted, a foreign national can waive the employer’s sponsorship through a labor certification in the employment-based second preference. Specifically, INA § 203(b)(2)(1)(A) states that the “Attorney General may, when the Attorney General deems to be in the national interest, waive the requirements….that an alien’s services in the sciences, arts, professions,  or business be sought by an employer in the United States.”  Note that under the Homeland Security Act of 2002, Congress transferred this authority from the Attorney General to the Secretary of Homeland Security.

INA § 203(b)(2)(1)(A) does not contain magic words such as “in the discretion of the Attorney General” to place it within the purview of the jurisdiction stripping provision. Still, the Ninth Circuit in Poursina v. USCIS opined that words like “may” and “deems it so” suggested some measure of judgment, and thus discretion on the part of the Attorney General (now the DHS Secretary) in granting a national interest waiver.  Moreover, the Ninth Circuit was also enamored by the fact that the invocation of “national interest” inherently exudes deference to the Executive Branch, See Webster v. Doe, 486 U.S. 592 (1988),  and further invokes broader economic and national security considerations that are firmly committed to the discretion of the Executive Branch, See Trump v. Hawaii, 138 S. Ct. 2392 (2018).

But assuming the Ninth Circuit’s logic was correct, even within a discretionary decision that may be immune from judicial review under INA 242(a)(2)(B)(ii), there may be purely legal questions that are non-discretionary. Indeed, the precedent decision of the Appeals Administrative Office in Matter of Dhanasar imposed such objective criteria that required the DHS Secretary to measure the national interest claim under those criteria rather than through the exercise of unbridled discretion. A person seeking a national interest waiver mush show:

(1)that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Notwithstanding these criteria that are similar to other undisputable objective regulatory criteria in determining who is extraordinary under INA § 203(b)(1)(A) and 8 CFR § 204.5(h)(3)(i)-(x), the Ninth Circuit in Poursina v. USCIS strangely held they fell short of a legal standard, and the Dhanasar standards expressly reserved the issuance of the waiver “as a matter of discretion.” But is there not always some discretion in all agency adjudications?  Even under the extraordinary ability standard pursuant to §203(b)(1)(A) there is discretion in determining whether fulfillment of the evidentiary criteria under 8 CFR § 204.5(h)(3)(i)-(x) can survive a final merits determination. See  Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).  Yet, courts have always assumed jurisdiction over appeals challenging denials under extraordinary ability standard.

One should therefore be able to argue that a federal court is not forever precluded from reviewing a denial of a national interest waiver. If  for example the USCIS does not apply the Dhanasar standard whatsoever in a future case, would that then pose a purely legal question or will a court, following  Poursina v. USCIS, throw out the case under INA 242(a)(2)(B)(ii)?  In fact, with respect to a denial of Poursina’s second national interest waiver, Poursina claimed that he never received a request for evidence. The Ninth Circuit ultimately shot down that claim on the grounds that Poursina did not update his address with USCIS in time, but agreed that a constitutional claim, such as this, is not subject to INA §242(a)(2)(b)(ii)’s jurisdictional bar.

One Third Circuit case, Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005) is especially noteworthy and discussed in David Isaacson’s blog.  Pinho’s adjustment of status application was denied because he was found to be ineligible as a result of a disqualifying conviction. However, that conviction was vacated and the charges were dismissed, but the adjustment application was still erroneously denied on the ground that his vacated guilty plea still met the definition of “conviction” under the INA.  Pinho was not placed in removal proceedings and he sought review of the denial of his adjustment of status application in federal court under the APA despite the bar on review of discretionary decisions, including adjustment of status under INA §242(a)(2)(B)(i), which is the companion jurisdiction stripping provision to INA §242(a)(2)(B)(ii). The Third Circuit Court held that this denial was based on the legal question of whether Pinho was statutorily eligible for adjustment of status, and thus fell outside the purview of the jurisdiction stripping clause.  The Third Circuit stated, “To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.”

Hence, under Pinho, there may still be scope to review a denial of a discretionary national interest waiver denial in federal court if there was a legal error or a constitutional claim. It must be acknowledged that the facts in Pinho were different as that case clearly concerned statutory eligibility without any element of discretion.    It remains to be seen whether a plaintiff can show legal error if the standards set forth in Matter of Dhanasar are not properly evaluated by the USCIS even though the application of those standards require discretion. This argument was not successful in Poursina v. USCIS, as the Ninth Circuit was of the opinion that the Dhanasar standards still smacked of discretion.  Moreover, in Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court held that only decisions actually declared discretionary by statute can be immunized from judicial review and not decisions made discretionary by regulation. This would also apply in the reverse. A discretionary statute cannot be made non-discretionary by regulation, or by standards set forth by the AAO in precedent decision such as Dhanasar.

While Poursina v. USCIS may have immunized national interest waiver denials from judicial review, the holding should be limited to national interest waivers only and should not impact the ability to challenge denials of other visa petitions in federal court, such as H-1B, L, or EB-1 cases.  The language of INA 214(c)(1) about how a nonimmigrant petition “shall be determined by the Attorney General” is even further away from explicit discretion than the national interest waiver language , and INA §203(b)(1)(A) regarding EB-1 cases doesn’t even have that level of Attorney General authority specified. Thus, in an APA action challenging a religious worker denial under INA §203(b)(4), the Third Circuit in Soltane v. US Dep’t of Justice, 381 F.3d 143 (3rd Cir. 2004) held that the provision did not specify that the Attorney General had discretion.  In Residential Finance Corporation v. USCIS, a federal district court in Ohio reversed a denial of an H-1B case and the court also overrode the objections of the government that it did not have jurisdiction under INA §242(a)(2)(B)(ii). None of the provisions governing approval of an H-1B petition specified that granting a petition is in the discretion of the Attorney General. The court in Residential Finance distinguished the facts from those in CDI Information Services Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002) which refused to review the denial of an H-1B application for extension of stay as the grant of such an extension was within the discretion of the attorney general under INA §214(a)(1).

While one may disagree with the holding in Poursina v. USCIS, seeking review of a denial of a national waiver request in federal court is more likely to fail than the review of denial of other petitions. Even the DC Court of Appeals in Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) has agreed. The Ninth Circuit even refused to extend its holding in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004), which held that the visa revocation statute, INA §205, was not subject to the jurisdiction stripping provision although it was linguistically similar to the national interest waiver statute as it did not contain any language suggesting discretion. Thus, unless another circuit court disagrees with Poursina v. USICS and Zhu v. Gonzales, an APA challenge seeking review of a national interest denial, without more, may not succeed. In a future case, an argument can be made that when the statute, which in this case INA § 203(b)(2)(1)(A) does not specify that the grant of a waiver is in the discretion of the Attorney General, the court should not be able to divine discretion from other words in the statute as the Ninth Circuit did in Poursina v. USCIS. This is especially so, when unlike the companion jurisdictional stripping provision under INA §242(a)(2)(B)(i), there is no specific mention of discretionary applications that immunize them from a court’s jurisdiction such as an adjustment of status application or cancellation of removal. Until there is such success, prospective litigants should be made aware that the USCIS’s Appeals Administrative Office rather than a federal court will likely have the final word when USCIS denies a national interest waiver request.