and as such, is a versatile way to bring experienced employees from abroad to augment U.S. operations.Semiconductors Are Officially in the National InterestThe CHIPS Act and the investments accompanying the act provide ample ammunition for practitioners seeking National Interest Waiver (NIW) approval for companies operating in the semiconductor industry. The NIW provides an exemption to the standard labor certification green card process if it can be proven that:The foreign national’s proposed endeavor has both substantial merit and national importance;The foreign nation is well-positioned to advance the proposed endeavor; andThat, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.The CHIPS Act, as well as the media coverage surrounding the CHIPS Act, provides significant evidentiary weight for individuals in the semiconductor industry to meet the first prong of the above-mentioned test, set forth in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Both the act itself and information supplied by industry stakeholders such as the Semiconductor Industry Association provide a strong justification for skilled individuals involved in any aspect of the semiconductor industry to obtain an NIW. The Act offers decisive language, including the need to address “the challenges the United States critical materials supply chain workforce faces, including aging and retiring personnel and faculty, and foreign competition for United States talent.”It should also be noted that Subtitle D of the CHIPS Act does impose some requirement for foreign talent recruitment programs, most notably in the semiconductor research sector, especially in federal research agencies.Growing PainsThere has been some notable opposition to the use of immigrants and foreign nationals in America’s semiconductor boom, which may have contributed to delays in the opening of facilities in the U.S. when compared to similar operations overseas. As this comparison illustrates,

must first pass a test of the labor market to ensure that there are no willing, qualified, or available U.S. workers to perform the offered position. This process is called a labor certification, or PERM. The National Interest Waiver (NIW) is a pathway to permanent residency that essentially requests that USCIS waive the requirement of a job offer and, consequently, waive the labor certification requirement. The NIW is a second preference category classification (EB-2) and is available to those “who are members of the professions holding advanced degrees” or who are foreign nationals of “exceptional ability” who can demonstrate that it is in the national interest of USCIS to waive the requirement that the worker’s “services in the sciences, arts, professions, or business” be sought by an employer in the United States.There is no definition of “national interest,” and therefore, the category has been shaped by case law. According to the current standard outlined in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), there are three requirements to qualify for a national interest waiver:The applicant’s planned work has substantial merit and national importance;The applicant is well-positioned to advance that endeavor; andOn balance, it benefits the United States to waive the job offer and labor certification requirements.Note that the third prong of the Dhanasar test balances the interest served by the foreign national’s endeavor against the purpose of the PERM program, which is to protect the wages, working conditions, and jobs of U.S. workers. Because this is also an important national interest, the foreign national’s endeavor must be sufficiently compelling to outweigh the benefits of the job offer and labor certification requirements.The NIW category is one of the few employment-based categories under which a beneficiary may self-petition. Thus, the NIW does not require employer sponsorship. The date of filing the NIW petition becomes the foreign worker’s priority date, which is the date used

The NIW is an immigrant petition in the employment-based second preference (EB-2) category. A foreign national may self-petition for an NIW without a job offer in the United States or an employer may file an NIW petition on a foreign national employee’s behalf. In either case, an NIW petition allows the petitioner to forego the permanent labor certification (PERM) process with the Department of Labor by demonstrating that the foreign national’s employment in the United States is in the national interest.Under existing standards, foreign nationals seeking an NIW must show evidence of an advanced degree or exceptional ability, meaning “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” To demonstrate eligibility, foreign nationals must also satisfy a three-pronged test established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Specifically, they must show: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and a labor certification.While the updated USCIS policy guidance still requires STEM graduates to satisfy the Matter of Dhanasar test, it indicates that having an advanced degree — particularly a doctoral degree — in a “critical and emerging technology” STEM field holds substantial evidentiary weight under all three prongs. With respect to the first prong, the guidance states that “[m]any 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.” Und

What is being waived is the labor market test for a specific job with a specific employer. The reason for waiving it is that the applicant’s immigration would be in the national interest.While the Administrative Appeals Office of the Department of Homeland Security (AAO) has provided guidance regarding this rule (see Matter of Dhanasar, 26 I&N Dec. 884 [AAO 2016]), interpretations still vary widely.Updated Employer GuidanceThe current competition for talent, especially in technology and national security, begs for a change in our immigration system.

As there is no statutory or regulatory definition of the term “national interest”, USCIS relies on a relatively recent Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver. See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).According to Dhanasar, to be eligible for an NIW, the requestor must demonstrate:They plan on working in the United States in an area of substantial intrinsic merit and/or national importance;They are well positioned to advance their proposed endeavor in the United States; andOn balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

AAO issued a precedent decision altering the National Interest Waiver criteriaOn December 27, 2010, the U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) published a precedent decision that significantly alters the criteria for the EB-2 National Interest Waiver (NIW) immigrant visa category. The decision is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). As a result of this decision, foreign nationals seeking permanent residence by bypassing the job offer requirement and labor certification process through a NIW must establish the following:The foreign national’s proposed endeavor has both substantial merit and national importance.

At the end of the 2016 calendar year, the Administrative Appeals Office (AAO) published a welcome precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In this case, the AAO has significantly revised the framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep’t of Transp.. (NYSDOT).

On December 27, 2016, U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), addressing the National Interest Waiver (NIW) standard affecting certain petitions for lawful permanent residence.In Dhanasar, the AAO vacated a previous decision, which had governed the standard for NIW petitions since 1998, and established a new framework. In Dhanasar, the AAO found that the previous framework was problematic, particularly for entrepreneurs and self-employed petitioners.The AAO mandated a new, more flexible and less restrictive test, that can be met in a range of ways and is meant to apply to a greater variety of individuals.The EB2 NIW Permanent Residence Category Foreign Nationals may be eligible for permanent residence under the Second Employment-Based Preference (EB2), if they are “members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”