EB-2 National Interest Waiver: Matter of Dhanasar's Three-Prong Framework

What changed

On December 27, 2016, the Administrative Appeals Office published Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), as a precedent decision. Dhanasar vacated Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), the 18-year-old framework that had governed national-interest-waiver adjudication.

The waiver itself sits at INA § 203(b)(2)(B)(i), 8 U.S.C. § 1153(b)(2)(B)(i): for an EB-2 petitioner with an advanced degree or exceptional ability, the Secretary “may, when the Secretary deems it to be in the national interest, waive” the requirements that the alien’s services be sought by a U.S. employer and that a labor certification be obtained from the Department of Labor.

NYSDOT had asked three abstract questions about “intrinsic merit,” “national in scope,” and whether the national interest would be “adversely affected” by requiring labor certification. Practitioners and the AAO agreed the third prong, in particular, had become impossible to satisfy in good faith — it amounted to proving a counterfactual harm.

Dhanasar replaced those three prongs with a cleaner test. To merit a national-interest waiver, the petitioner must demonstrate:

1. The proposed endeavor has both substantial merit and national importance.
2. The petitioner is well-positioned to advance the proposed endeavor.
3. On balance, it would be beneficial to the United States to waive the job-offer and labor-certification requirements.

USCIS implemented the framework in the Policy Manual at Volume 6, Part F, Chapter 5, and updated guidance again on January 21, 2022 (PA-2022-02) to clarify how the agency evaluates STEM endeavors, entrepreneurs, and physicians under the three Dhanasar prongs.

Why it matters

Dhanasar matters because it materially expanded who can credibly file an NIW.

Under NYSDOT, the second prong required proof that the petitioner’s specific contribution outweighed the harm of bypassing labor certification — a framing that effectively required the petitioner to show they were irreplaceable. The AAO in Dhanasar acknowledged that this had been read as “imposing a near-impossible standard” (26 I&N Dec. at 889).

Under Dhanasar’s prong two, “well-positioned” is documented through education, skills, knowledge, and record of success in related or similar efforts; a model of execution; the existence of progress toward achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities. Crucially, the AAO clarified that the petitioner need not show “they will more likely than not ultimately succeed” — only that they are well-positioned to advance the endeavor.

Prong one, “substantial merit and national importance,” is broad by design. The AAO wrote that the endeavor’s merit “may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education” (26 I&N Dec. at 889). National importance focuses on the prospective impact, not the geographic scope of the work — an inventor in a single city whose technology has national reach can satisfy this prong.

Prong three, the balancing test, replaces NYSDOT’s impossible counterfactual. The AAO offered three illustrative factors: (a) impracticality of the labor-certification process given the nature of the endeavor; (b) the benefit to the U.S. of the petitioner’s contribution even if other U.S. workers were available; and (c) the national interest in the petitioner’s contributions being sufficiently urgent.

The 2022 USCIS guidance built on Dhanasar by formally recognizing that endeavors in critical and emerging technologies identified by the National Science and Technology Council — and STEM Ph.D. holders generally — present “particularly strong” cases under prongs one and two, though every petition is adjudicated on its own facts.

Way forward

For practitioners preparing an NIW in 2026:

1. Define the endeavor narrowly. “I am a software engineer” is not an endeavor. “I am developing federated-learning techniques for radiology models that preserve patient privacy” is. Every Dhanasar prong is evaluated against the defined endeavor, so define it carefully — narrow enough to be specific, broad enough to absorb pivots.
2. Document national importance with downstream consequence. Letters and evidence should articulate who benefits, at what scale, on what timeline. Citations of federal strategic plans (NSTC critical-and-emerging-technologies list, DOE/NIH/NSF strategic priorities, executive orders) anchor prong one in primary sources.
3. Prong two is biography, not promise. Past success in related work is the strongest evidence of being “well-positioned.” Letters from collaborators, employers, and customers; published work; patents; grant funding; investor commitments — these go to prong two, not prong one.
4. Address prong three head-on. Many filings now treat prong three as a perfunctory conclusion. The AAO has issued non-precedent decisions denying on this prong alone. Argue affirmatively: why is labor certification impractical given the endeavor; what is the urgency; what is the benefit irrespective of available U.S. workers.
5. For STEM cases, cite the 2022 guidance. USCIS PA-2022-02 (January 21, 2022) and the Policy Manual updates that followed are not boilerplate; they shift how Schedule A occupations, advanced STEM degrees, and entrepreneurs are evaluated. Quote the guidance and apply it to your facts.
6. Mind the underlying EB-2 eligibility. Dhanasar is a waiver of job-offer and labor-certification requirements only. The petitioner still must qualify for EB-2 — advanced degree (or bachelor’s + 5 years of progressive experience) or exceptional ability under 8 CFR 204.5(k)(2)–(3). A weak underlying EB-2 case sinks an otherwise strong NIW.

Visa-bulletin reality interacts here. EB-2 worldwide has periodically retrogressed since 2022, and EB-2 India remains years behind. An approved NIW with no visa number is still useful — it locks in the priority date, supports H-1B extensions beyond the sixth year under AC21 § 106(a), and enables porting under INA § 204(j) — but practitioners should set client expectations accordingly. Track current dates in the DOS Visa Bulletin.

Disclaimer

We’re a software company, not a law firm. Nothing here is legal advice. NIW adjudication is fact-intensive, and the AAO continues to issue non-precedent decisions that gloss the Dhanasar prongs in occupation-specific ways. Consult a licensed immigration attorney before relying on any of the above, and verify every citation against the primary source — Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the USCIS Policy Manual Volume 6, Part F, Chapter 5, and the January 21, 2022 policy update (PA-2022-02) on the USCIS website.