On December 27, 2016, the Administrative Appeals Office (AAO) issued a rare “precedent” decision in Matter of Dhanasar, 26 I&N Dwec. 884 (AAO 2016). Gerard M. Chapman, principal at Chapman Law Firm, was counsel for Dr. Mookesh Dhanasar, the applicant, throughout most of his green card case and the entire appeal that resulted in the precedent decision. The AAO issues only a very limited number of such decisions, and in this case, it vacated the last precedent decision on National Interest Waiver (NIW) cases from 1998, Matter of New York State Dep’t of Transp., 22 I&N Dec. 215(Acting Assoc. Comm’r 1998) (“NYSDOT”).
The background to Matter of Dhanasar is straightforward. On May 24, 2014, USCIS denied Dr. Dhanasar’s application for a National Interest Waiver (NIW) of the normal Labor Certification Application requirement in EB-2 employment based green card cases. Because that category is so badly backlogged for citizens of India (almost 9 years) and of China (over 4 years), many Indian and Chinese nationals try to avoid the labor cert by filing an NIW application.
Before it denied Dr. Dhanasar’s NIW application, USCIS issued a Request for Additional Evidence (RFE). Dr. Dhanasar promptly retained Mr. Chapman to respond to the RFE. In our response, we submitted exhaustive evidence (support letters, articles, etc.) proving that Dr. Dhanasar is a highly accomplished engineer who has made exceptional accomplishments in his field, and who has had a major impact through his unique scientific developments in his field of hypersonic propulsion, computational fluid dynamics and nano/pico small satellite systems. Multiple support letters confirmed that his research and scientific development methods are outstanding and among the most cutting-edge in his field, and that, by providing a unique approach to small satellite propulsion, his work will result in a sustained national benefit to the security of the United States.
Despite overwhelming evidence that Dr. Dhanasar clearly satisfied each and every component of the NYSDOT case, USCIS denied his NIW application. In response to that denial, we prepared a detailed brief, pointing out that USCIS had failed to follow the most basic principles that govern how it is required to adjudicate cases like his, and pointing out how the evidence (originally submitted and the evidence submitted in response to the RFE) complied with the full NYSDOT test and more than satisfied it. In fact, the USCIS decision completely ignored the substantive portions of the many support letters and other evidence, and simply quoted portions of the letters that commented on his excellent work ethic, and similar qualities. (USCIS ignored the portions of the letters that confirmed, in explicit detail, how his work will generate a sustained national benefit to US security by advancing military use of high speed propulsion.) Although those parts of the support letters were accurate, by quoting only those general, complimentary portions, USCIS acted as if the rest of the letters and other significant evidence did not exist. In effect, by ignoring core evidence that it had requested in its RFE, USCIS was able to use the vague nature of the NYSDOT test to deny Dr. Dhanasar’s NIW application.
We filed the appeal brief in June of 2014, and in the normal course, the AAO should have issued a decision by the end of 2014 or early 2015. However, in February of 2015, the AAO issued its own RFE, asking for extensive evidence regarding:
- The national impact of his work in the field of hypersonic propulsion and computational fluid dynamics
- Use of his research by government and industry
- Funding he had received from various government entities
- Funding received by North Carolina A&T University’s NASA Center for Aerospace Research
- Research papers, citations, etc., that documented his development of a novel numerical method to compute hypersonic air flow at a significantly reduced cost
- NASA’s interest in this method
- His plans for future work in the field
An RFE is not unusual in cases before USCIS, but it is rare in a case at the AAO. In addition, an RFE can mean many things, some of which are negative. In this case, however, it indicated that the AAO viewed Dr. Dhanasar’s case as more than just another appeal from a USCIS denial. The scope of the RFE implied that the AAO was looking beyond the facts in his particular case, and that turned out to be true. In its review of what USCIS had done in order to deny the case, the AAO concluded that the long-standing criticisms of NYSDOT from practitioners all over the country were valid: the NYSDOT test was too vague, and created an unreliable method to determine if the national interest should excuse an applicant from the normal labor cert requirement.
In its decision reversing USCIS in Matter of Dhanasar, the AAO completely vacated NYSDOT. The AAO first summarized the NYSDOT test, which had established three prongs for applicants to address: first, that the area of employment is of “substantial intrinsic merit”; second, that any proposed benefit from the applicant’s work will be “national in scope”; and finally, that the national interest would be adversely affected if a labor cert were required for the applicant in the NIW case.
The AAO declared that the first requirement of showing the applicant’s work had “intrinsic” merit was too subjective. It also concluded that the second requirement (showing the benefit to be “national in scope”) depended too much on geographic terms. Finally, it found the third prong to be the most troublesome, in part because the NYSDOT opinion described that requirement in several different ways: including proof that the applicant showed “influence in the field”; showing the national interest would be harmed if a labor cert were required; proof that the applicant presents a national benefit that outweighs the national interest inherent in the labor cert process; and proof that the applicant will serve the national interest to a substantially greater degree than would an available US worker having the same qualifications. This last iteration of the third prong is probably the most difficult to address, because, as a practical matter, it essentially asks the applicant to show that he is the only truly qualified applicant—the exact point of a labor cert.
The AAO also noted that there are some applicants whose past accomplishments are exceptional but may not indicate future successes (another iteration of the third NYSDOT prong), and that there are entrepreneurs (and this is quite significant) who should be granted an NIW , but who cannot prevail under the NYSDOT standard.
After explaining why the NYSDOT opinion was no longer an acceptable test for NIW cases, the AAO announced its new NIW standard:
- That the applicant’s proposed endeavor has both substantial merit and national importance.
- The applicant is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the US to waive the requirements of a job offer and, therefore, the normal labor certification requirement.
The AAO decision includes significant commentary on the nature of acceptable evidence that practitioner can include in NIW cases, and in doing so it appears that the AAO has made the new standard more adaptable to modern economic, scientific, artistic and entrepreneurial trends and conditions. We will discuss those comments in a subsequent posting, but for now, the new standard is in play. In fact, on the same day that it issued Matter of Dhanasar, it also approved another NIW case filed by Greg Siskind of Memphis, using the Dhanasar standard. (Greg has posted an excellent summary of the Dhanasar decision on his website.)
The takeaways from Dhanasar are several: first, never give up. Practitioners around the country have called on the AAO to vacate NYSDOT for years, arguing correctly that the standard is too vague and that many deserving cases are denied, harming the applicants as well as the US. Second, never underestimate your client. In this case, Dr. Dhanasar provided us with exceptional materials to use in our REF responses, and was involved in helping craft the arguments we advanced to USCIS and to the AAO. Third, draw on the talents of your support staff. Kelly Gamble, our Senior Paralegal, was instrumental in keeping track or and organizing a massive amount of documentation at multiple stages of this case, and helping edit and proofread multiple filings. Her work was instrumental in the case. Fourth, the government sometimes sees the importance of making significant changes in case law, and does what is necessary to make that change. It took over 2 years for the decision to issue in Dhanasar, but the wait was well worth it. We are grateful for the new standard, and grateful for the hard work of the AAO in crafting it. More to the present case, Dr. Dhanasar is well on his way to resuming his work in a field that is important to the security of the United States. We are very lucky to have him here, and Chapman Law Firm is honored to have represented such an outstanding and deserving client.