Application of Dhanasar Standard in NIW Cases

by Tiffany Chang Wu, Neena Wiora, Dan Berger, and Aleksandra Peryeva

Tiffany Chang Wu is an Associate at Fragomen’s Irvine office, where she provides long-term strategy planning to employers and
foreign nationals across a broad range of industries, including engineering, manufacturing, aerospace, pharmaceutical and
entertainment. Prior to joining Fragomen, Tiffany practiced immigration law at a California-based immigration law firm. Her
practice focused on employment-based immigration matters, and she served clients of all sizes in diverse industries, such as arts,
entertainment, new media, fashion, sports, medical, research, biotechnology, technology and aerospace fields.

Neena Wiora is a shareholder at Gupta and Wiora, P.C. with extensive experience in the field of employment-based immigration
law. She has held this position for over 20 years. Before this, Neena worked for five years as a Trial Attorney for the U.S.
Department of Justice’s Tax Division. Neena received her J.D. from Southern Methodist University in 1990, where she served as
Comments Editor for The International Lawyer. Before law school, Neena worked as an Auditor at Peat Marwick. Neena received
her BBA in Accounting and Mathematics from Southern Methodist University in 1986. Neena is a member of the American
Immigration Lawyers Association, on the Board of Directors for Junior Players, and formerly served as a Trustee on the Greenhill
School Board of Trustees. She has been active in Attorneys Serving the Community, currently as Co-Chair of the Silent Auction
Committee and in the past as Co-Chair for the Luncheon Centerpiece Arrangement Committee.

Dan Berger is a partner at the immigration law firm of Curran, Berger & Kludt in Northampton, MA. Dan developed his interest
in immigration at Harvard University, where he studied immigration history and taught English to adult refugees. Dan graduated
from Cornell Law School and has been an immigration attorney for over twenty years. He is also a founding member of the US
Alliance of International Entrepreneurs (usaie.org), an Honorary Fellow of the American Academy of Adoption Attorneys, and a
member of the USCIS Headquarters liaison committee for the American Immigration Lawyers Association (AILA). Dan has edited
Immigration Options for Academics and Researchers, the International Adoption Sourcebook, and the Diplomatic Visa Guide. He
wrote an Issue Brief for the American Council on Education (ACE) after the 2016 election, and was a co-author on a “Note” on
immigration in 2017 for the National Association of College and University Attorneys (NACUA). Dan has also been quoted in
various media including the Atlantic Magazine and the Huffington Post.

**********

In late 2016, the AAO issued the precedent case Matter of Dhanasar, which brought about
important changes to adjudication of National Interest Waivers (NIWs). Now two years after new
standard was adopted, we reviewed more recent non-precedent AAO cases and offer some
observations on adjudication trends under the Dhanasar framework. This practice pointer builds
on previous reviews of AAO cases. 1

There was general enthusiasm for Dhanasar, since it allowed cases with mainly local benefit, and
cases based more on potential than past accomplishment. USCIS stopped processing NIWs for
several months to re-train in early 2017, and processing times grew to almost a year. Those
processing times have not gone down, meaning that we are just starting to have enough
adjudications and appeals to see post-Dhanasar trends.

Positive changes suggested by Dhanasar include:

 Dhanasar moved away from the geographic importance of “national in scope”

 The case recognized that evidence of the potential to create significant economic effect is
not always required and the endeavor’s merit may be established without immediate
quantifiable economic impact

1
https://cbkimmigration.com/wp-content/uploads/2017/07/NIWcases.pdf, and D. Berger et al., “The New NIW
Standard Established by Matter of Dhanasar” (AILA Teleconference, Sept. 7, 2017).

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  The case specifically noted that “endeavor that has significant potential to employ U.S.
workers of has other substantial positive economic effects, particularly in the economically
depressed area” can satisfy national importance prong.
 Dhanasar admitted, “past achievements are not necessarily the best or only predictor of
future success.” It proposed a broader list of factors relevant to determine whether a foreign
national is well positioned to advance proposed endeavor.
 The case underlined that the balancing prong should not require a showing of harm to the
national interest or a comparison against U.S. workers in the petitioner’s field.

Overall, some changes brought by the Dhanasar framework successfully implemented. However,
USCIS is still focusing mainly on past accomplishments of the applicant and at times using pre-
Dhanasar RFE-templates. Dhanasar offers room for creativity, but the practitioner may need to
clearly cite Dhanasar to try to educate and persuade the adjudicator. And litigation may be needed
in federal court to clarify the Dhanasar guidelines if USCIS and AAO trends persists.

Federal litigation would be a topic for a separate practice advisory, but we understand that some
NIW appeals to federal court have been unsuccessful for subject matter jurisdiction because NIWs
are a discretionary remedy. 2 Dhanasar intended NIWs to be a “broad” remedy, and continued
litigation maybe needed to achieve that goal. 3

THE DHANASAR CRITERIA

Dhanasar states that after EB-2 eligibility has been established, USCIS may, as a matter of
discretion, grant a national interest waiver when the below prongs are met (emphasis added):

1. 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 wide range of fields including business,
entrepreneurialism, science, technology, culture, health, and education. In
determining whether the proposed endeavor has national importance, we consider
its potential prospective impact.

2. 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, USCIS will consider factors including, but not limited to:
individual’s education, skills, knowledge and record of success in related or similar
efforts; a model or plan for future activities; any progress toward achieving the
endeavor; and the interest of potential customers, users, investors or other relevant
entities or individuals.

3. The third prong requires the petitioner to demonstrate that, on balance, it would
be beneficial to the U.S. to waive the job offer and labor certification
requirements of the EB-2 category. To meet this requirement, USCIS may

2
8 USC §1252 (a)(2)(B)(ii). Also see Jiin Pharmacy v. Chertoff, 447 F.3d 196 (3rd Cir. 2006).
3
Dhanasar refers to the NIW as a “broad discretionary waiver provision to benefit the United States.” at 889,
available at www.justice.gov/eoir/page/file/920996/download.

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 evaluate factors such as: whether in light of the nature of foreign national’s
qualifications or the proposed endeavor, it would be impractical to secure a job
offer or obtain labor certification; the U.S. would still benefit from the foreign
national's contributions even if qualified U.S. workers are otherwise available; and
whether the national interest of the foreign national's contributions is sufficiently
urgent to warrant foregoing the labor certification process.

Looking more carefully at each prong of Dhanasar:

Substantial Merit and National Importance

 None of the AAO cases showed that the endeavor failed to meet the substantial merit
requirement. It is very broadly interpreted. There was only one exception where not enough
details were provided. ( In Matter of M-S- applicant claimed she will carry out research in
the field of petroleum engineering, but does not sufficiently explain what kind of research
or support her claim by evidence). Practitioners report also RFEs where the officer has not
understood the proposed endeavor and then issued a boilerplate request for evidence.
 To evaluate national importance, the Service looks at the potential impact of the specific
endeavor. It is clear to see two different patterns - research almost always satisfies the
national importance test, while other endeavors receive more scrutiny.

For research-based cases:

 USCIS is willing to look forward. Letters of support describing potential valuable

impact/uses are usually enough. USCIS also considers the importance of the problem that
the endeavor aims to solve. (Ex. Need for alternative cancer treatment described in media
articles Matter C-A-H-; see also Matter T-H-C-)
 As a positive factor, USCIS also notes any evidence that the research results are
disseminated to others in the field through conferences and publications.
 “Research” is specifically mentioned in Dhanasar as an example of where merit may be
established without immediate quantifiable economic impact. Thus, USCIS indeed does
not require evidence of the potential to create significant economic effect for research and
is readily willing to look forward at research’s potential and indirect benefits.

For other endeavors, not connected with research (entrepreneurs, professional work):

 Dhanasar indeed moved away from the geographic importance of endeavor. The endeavor
must impact the field or industry more broadly and go beyond creating value to one’s
clients, customers, institution. (Ex. No national importance found for work of Special
Education Teacher, Financial Engineer, Legal Analyst, Travel Consultant, Metallurgical
Engineer, Geophysicist, Human Resource Manager)
 USCIS takes into consideration the importance of the specific undertaking as the analytical
focus is shifted from the field to the applicant’s endeavor. (Ex. Matter of K-O-A-A- No
national importance where entrepreneur intended to design and produce special bags,
which, among other things, will help poor and refugees; Matter F-O-O- No national

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 importance in work of medical technologist for highly contagious diseases (Ebola) in one
of the leading national facilities)
 For entrepreneurs, establishing/expanding business USCIS requires specific evidence of
substantial economic benefit achieved due to the proposed endeavor. Unlike in case of
research endeavors, USCIS will not look at potential or indirect effect of the endeavor.
(Matter of A-R-A- Where detailed business plan for a growing personal electronic
distribution company suggested positive economic metrics, benefit to national producers
as well as to logistics partners throughout U.S., USCIS referenced absence of “specific”
evidence of “substantial economic benefit” and found no national importance present.
Matter of K-O-A-A- AAO reversed finding of national importance questioning specifics of
business plan where petitioner proposed to employ homeless people in her endeavor and
citing no evidence of specific location of the company, or specific number of homeless she
intends to hire.)
 Job creation must be direct and substantial, in order to satisfy national importance criteria.
(Eg., Matter of D-F-D-M- Financial engineer argued that he will work on specific large
consulting projects which will create jobs in U.S. USCIS did not find national importance
because “no sufficient evidence regarding any projected U.S. job creation attributable to
his financial engineering work”; Matter of A-R-A- Direct creation of 17 jobs, according to
business plan – not enough.)

Well Positioned to Advance the Proposed Endeavor

The second prong can be the most challenging prong to meet. A bit of a shift from pre-Dhanasar
cases where the third prong was the hardest. Pre-Dhanasar framework analyzed applicants
qualifications and did balancing within 3d criteria. Where Dhanasar made the second prong to
focus on the applicant and then do the balancing in the 3d prong. Thus, the most challenging part
still connected to applicant’s qualification.

Out of all the examples of evidence that can suggest that the petitioner is “well positioned to
advance its endeavor,” USCIS focuses on the “record of success in related or similar effort,” “the
interest of potential customers, users, investors or other relevant entities or individuals,” and to
some extent on “progress toward achieving the endeavor.”

 Record of success is interpreted as something more than successful prior research and
publication in the field. USCIS looks for evidence that prior research is frequently cited by
others in the field or otherwise serve “as impetus for the progress in the field, that it has
affected the [sic] industry, or that it has generated substantial positive discourse in the
broader academic community.” (Matter of U-A-K-U-; Matter of S-A-K-; Matter of S-C-P-
; Matter of M-K- and many others). Note that these phrases are common in RFEs and AAO
decisions, but do not appear in Dhanasar. There may be room to push back or litigate.
 USCIS tends to look at the number of citations and require “comparative statistics” for
other researchers in the same field. (Matter of S-C-P- ; Matter of M-K-; Matter of D-I-R-
found not record of success, where no comparative statistics for citations provided. Matter
of U-H- Concluded that frequently cited word provides an example of the petitioner’s track
record of successful research, Matter of Q-K- , Matter of S-M-M-S- petitioner’s work “has
been cited at a rate which is high relative to others in his field”)

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 “The interest of potential customers, users, investors or other relevant entities or
individuals” is sufficient where there is a showing of funding, large number of customers
using the product, specific description of how results of the research are implemented in
the field by others. (Matter of E-J-C-D-H- , found substantial interest where letters from
experts in the field offer specific examples of the widespread utilization of the Petitioner’s
crop biostimulant products and letters where corroborated by purchase orders, invoices and
sales data.) Again, this appears to go beyond Dhanasar by focusing too much on the past,
rather than potential for the future.
 USCIS requires specific examples on how research has generated positive interest among
relevant parties (Matter of S-A-K- Reference letter saying that petitioner’s “original
research has produced new and important findings that are continuously having positive
global implications throughout the field” is not enough without specific examples of such
implications, Matter of S-B- )
 Implementation of petitioner’s work is strong evidence of record of success and
“substantial interest.” However, USCIS is looking for widespread implementation. Only
plans to implement, not enough. Implementation within one institution is not enough.
(USCIS found sufficient interest by relevant parties in Matter of P-Y-G where applicant’s
research results has been implemented commercially by a pharmaceutical company. Matter
of N-P- USCIS found no substantial level of interest noting that “while letter writers
compliment the Petitioner’s work and state that these improvements could be applied to
other PIVU departments, none of them states that they are aware of their implementation
at hospitals other than those that employed him.” Matter of D-I-R- no evidence that
implementation go beyond 1 institution)
 Reference letters are helpful. Need not only praise and applaud to petitioner’s work, but
explain how, specifically petitioner influenced the field including the author’s own work.
Comparison to others in the field seems to work the best. (Matter of Q-K- letters of support
called Petitioner’s research “pioneering” and discussed in details direct impact of the
research on author’s work and of work of others in the field. Matter of S-M-M-S- reference
letters called Petitioner “a leading researcher in the field” and references specific examples
how his research directly impacted the practices of clinical doctors and other researchers.
But no record of success found in Matter of S-A-K- where reference letters say that
“original research has produced new and important findings that are continuously having
positive global implications throughout the field” but does not offer specific examples of
such implications)
 Progress toward achieving the endeavor is found where grant funding for the proposed
research has been secured or job offer to continue the research extended. USCIS focuses
less on this factor and only relied on it in combination with “substantial interest” and
“record of success” factors.
 A business plan is helpful, but not without some documented past success or interest from
customers and investors. This is true even for a professionally prepared business plan with
financial projections and market analysis. If a business plan references funding, USCIS
requires evidence of where funding will come from. (Matter of I-N-, USCIS did not find
petitioner well positioned to create a drug discovery company based on a platform develop
by him where he presented business plan, patent registration and letter from a prospective
customer, but not evidence that company attracted investment. Matter of S-K- , Matter of
I-N, Matter of G-P-C-F-K-)

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  For entrepreneurs – evidence of success of this current endeavor required. Starting similar
business in the past was not enough. (Matter of S-K- Launch of a similar business in a
home country, coupled with a business plan for U.S. company was not found sufficient to
satisfy the second prong )
 For a scientific researcher, the authors have found that copies of grant materials funding
the proposed research, the grant’s Principal Investigator’s letter on the importance of the
proposed research and international researcher’s role in it, and the beneficiary’s own
personal statement of the proposed research could satisfy this prong.

In its application of the second prong concerning being “well-positioned to advance the proposed
endeavor,” USCIS continues to look at persons past achievements (and compare to peers in the
field) as a primary measure of future success. Effectively NYSDOT standard of “past history of
demonstrable achievement with some degree of influence on the field as a whole” is still applied.
This approach, clearly contradicts Dhanasar, which seek to misplace this standard and criticized
it as a “yardstick” coming from footnote 6 of NYSDOT. Dhanasar expressly stated in its own
footnote 6, “past achievements are not necessarily the best or only predictor of future success.”
Practitioners filing cases based on future potential will need to clearly cite Dhanasar in an attempt
to educate the officer, and may need to be ready to appeal or litigate.

In particular the following misapplication to Dhanasar standard, led it to roll back to using
“yardstick”:

 Adjudicators of NIW cases focus almost exclusively on past-looking 2 criteria: “record of

success in related or similar effort,” “the interest of potential customers, users, investors or
other relevant entities or individuals,” and do not take into account other more forward
looking criteria like “individual’s education, skills, knowledge” and model and plan for
future activities”.
 Within those two criteria adjudicators add new requirements, never mentioned by
Dhanasar, raising the bar very high. For example, in order to demonstrate “record of
success” one must demonstrate, USCIS say, that his prior work influenced the broader
field, was frequently cited or otherwise provide an impetus to the field. However, plain
language of Dhanasar and common meaning of “record of success” does not suggest that
high standard, but rather some accomplishments that suggest ability to carry out future
endeavor.
 USCIS also imposes high level of interest of potential customers, users, investors or other
relevant entities or individuals, which was never mentioned in Dhanasar. For example, by
requiring not just statement of interest and high evaluation by experts in the field, but
implementation; not just implementation within 1 institution, but within many institutions.
Adjudicators often cite to interest not being “sufficient” even though list of factors, does
not have word “sufficient.”

Recently, the Texas Service Center has been issuing broad brush RFEs providing little to no
analysis of the evidence submitted. For researchers, in particular, the TSC states that not every
researcher who has performed original research will be found to be well positioned to advance his
or her proposed research. Quoting from one such RFE, “The petitioner has not shown her articles
have been widely cited by other independent researchers in the field or otherwise served as an

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impetus for progress in the field. It would be helpful to include discussion of the variance of
publication and citation cycles among fields – what might be a high citation count in one field,
might be quite low in another field.” Practitioners should request a qualitative review of the
citations and point to other evidence of impact.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4770502/pdf/AJA-18-296.pdf;
http://www.sciencemag.org/features/2017/02/new-tools-measuring-academic-performance

ON BALANCE, IT IS BENEFICIAL TO THE U.S. TO WAIVE A JOB OFFER AND

LABOR CERTIFICATION REQUIREMENT

At AAO review level where, prong 1 and 2 were satisfied, the third prong was also found to be
met. The adjudicators tend to restate the “well positioned analysis coupled with national
importance analysis.” No AAO case was denied solely on failure to meet 3d prong.

This, most likely, happens because higher scrutiny applied in the second prong. As a result, for all
the applicant who was able to demonstrate they are well positioned to advance an endeavor of
national importance, it is also true to say that the U.S. would still benefit from the foreign national's
contributions even if qualified U.S. workers are otherwise available.

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