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US Immigration Opens Door for NIW Green Cards in the Arts

November 1, 2018

 

Important Green Card News:

The rules for an NIW Petition for Just Got Better!

 

Among the many tangled roads to a Green Card that exist, the National Interest Waiver (“NIW”) approach has always been one of the most intriguing.

 

NIW cases fall under EB-2. That means that the Beneficiary must, first, have an advanced degree or meet the standard for “exceptional ability”, which is spelled out in the law. But usually, EB 2 cases also require a PERM and an offer of full time employment by the Petitioning Employer.  NIW Green Card Petitions waive these PERM and Employment requirements, based on US “national interest.” NIW Green Card Petitions do not require an Employer to serve as the case’s Petitioner, and do not require an offer of full time employment or a PERM. In addition, NIWs also do not require the same level of globally recognized achievement as an EB 1-1 Green Card filing, to be approved. As a result, NIW has always been of particular interest to artists, writers, journalists, researchers and entrepreneurs.

 

Until now, however, the NIW standard has been vague, internally contradictory and just impossible to understand. Although we have filed numerous cases in this area, the incomprehensible NIW standard made it hard to advise many clients how strong their case really was under the prior rules, and we often counseled against going with this approach because of the vague standard in effect, which was subject to unpredictable interpretations. It was a good example of the problems with immigration law in the US in general.

 

But, a new era in NIW law was just inaugurated. In late December, 2016, the Immigration Service’s Administrative Appeals Office issued a new decision (called “Matter of Dhanasar”) which clarified the rules for an NIW cases, with realism, elegance and reasonableness. Under the new approach, the standard is easy to understand and reasonable. Here is how it works:

 

  • The threshold requirement for an NIW case is that the Beneficiary have an advanced degree or meet the standard for “exceptional ability”, which is spelled out in the law. This has always been a part of EB-2 law.

  • The New Analytic Framework stated in Dhanasar provides that an NIW Petition will be approved if it also establishes all three of the following:

  • that the foreign national’s proposed endeavor has both substantial merit and national importance;

  • 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.

 

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion. The new standard will be easily applied in most cases. It also has some amazing advantages for people in the arts. People who are deeply involved in the development of local cultural institutions or events will be eligible for NIW Green Cards now—when in the past, the requirement of “national scope” was generally a hurdle few could meet. The new formulation that the Beneficiary must be “well positioned” replaces the old requirement that the Beneficiary’s work must have been globally influential to meet the NIW standard. Moreover, we no longer need to show that it would be harmful to follow standard EB 2 procedures to qualify for an NIW. Now the focus is where it should be: is the work of value to the United States and is the Beneficiary truly positioned to advance this work?

 

While we have yet to see how adjudications under this new standard play out, we are excited to see the National Interest Waiver standard of law returned to a more practical approach—one which will benefit the US and benefit the many artists, writers, curators, scholars, designers, and others who are “well positioned” to realize these goals. If you are interested in discussing the new standard of NIW law, and whether it has application to you, please contact our office.

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