EB-2 National Interest Waiver: The Dhanasar Test in Detail

Step one: qualify for EB-2

The waiver does not replace EB-2 eligibility. An advanced degree is “any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate”. A bachelor's degree followed by at least five years of progressive post-baccalaureate experience in the specialty counts as the equivalent (8 CFR 204.5(k)(2) and (k)(3)(i)). The Policy Manual adds that, for an advanced degree professional, the occupation underlying the endeavor must itself require at least a bachelor's degree.

The alternative is exceptional ability, “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”. A petitioner shows it with at least three of these six kinds of evidence (8 CFR 204.5(k)(3)(ii)):

• an official academic record showing a degree, diploma or certificate in the area of exceptional ability;
• letters from employers showing at least ten years of full-time experience in the occupation;
• a license to practice the profession or a certification;
• evidence of a salary or other pay that shows exceptional ability;
• membership in professional associations; and
• recognition for achievements and significant contributions to the industry or field by peers.

Step two: the Dhanasar framework

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), decided on 27 December 2016, replaced the earlier test in Matter of New York State Department of Transportation. After EB-2 eligibility is shown, USCIS may grant a national interest waiver if the petitioner shows by a preponderance of the evidence that:

• the proposed endeavor “has both substantial merit and national importance”;
• the petitioner “is well positioned to advance the proposed endeavor”; and
• “on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification”.

Prong one: describe a specific endeavor, not just an occupation

The Policy Manual says “The term ‘endeavor’ is more specific than the general occupation.” An engineer, for example, describes the specific projects and goals and the area of engineering. The merit of an endeavor may lie in business, entrepreneurship, science, technology, culture, health or education. Research can qualify without “immediate or quantifiable economic impact”.

National importance is judged by prospective impact. An endeavor may qualify because it has “national or even global implications within a particular field”. Dhanasar says USCIS does not evaluate impact “solely in geographic terms” and that an endeavor focused on one area of the country may still qualify. An endeavor with significant potential to employ U.S. workers, or other substantial positive economic effects, “particularly in an economically depressed area”, may also qualify.

The Policy Manual adds two limits. Benefits to a specific employer alone, even an employer with a national footprint, are not sufficiently relevant. Classroom teaching without broader implications for a field or a region generally does not meet the standard.

Prong two: show that you are well positioned

The second prong looks at the person. Dhanasar lists the person's education, skills, knowledge and record of success in related efforts, a model or plan for future activities, any progress toward the endeavor, and the interest of potential customers, users or investors. The Policy Manual adds examples of evidence:

• degrees, certificates or licenses in the field;
• patents, trademarks or copyrights the person developed;
• published articles or media reports about the person's achievements or current work;
• correspondence from prospective customers, users, investors or other relevant entities; and
• letters from U.S. government agencies or quasi-governmental entities, and a feasible financial plan.

Prong two in practice: plans, letters and corroboration

Dhanasar does not require a petitioner to show that the endeavor is more likely than not to succeed. It still requires proof by a preponderance of the evidence that the petitioner is well positioned to advance it. The Policy Manual says “Claims lacking corroborating evidence are not sufficient to meet the petitioner's burden of proof”.

Letters may be persuasive when they come from people in the person's field who explain, with specific facts, why the work matters. A business plan should be supported by other independent evidence. A letter that praises the petitioner without describing the work adds little, because the officer weighs the quality of evidence as well as the quantity.

Prong three: why waiving the labor certification benefits the United States

Congress required labor certification to protect the domestic labor supply, and it created the waiver for cases where other national interests outweigh that protection. Dhanasar says USCIS may look at whether it would be impractical to secure a job offer or to obtain a labor certification, whether the United States would benefit from the person's contributions even if other qualified U.S. workers are available, and whether the national interest in the contributions is sufficiently urgent to warrant forgoing the process. The factors considered must, taken together, show that the waiver is beneficial on balance.

Unlike the old NYSDOT test, the third prong does not require a showing of harm to the national interest or a comparison with U.S. workers in the field. The Policy Manual adds that evidence of a national labor shortage would not, by itself, satisfy the prong. Meeting the three prongs does not oblige USCIS to approve: the petitioner must also show that the person otherwise merits a favorable exercise of discretion.

Filing, fees and timing as of November 2026

A person seeking an NIW may file Form I-140 without an employer. The Policy Manual says the petitioner must submit the employee-specific portions of a permanent labor certification without DOL approval, and that an employer's ability to apply for labor certification does not bar the waiver request.

Premium processing (Form I-907) obliges USCIS to take action within 45 business days for NIW petitions. The period stops when USCIS issues a request for evidence or a notice of intent to deny and restarts when USCIS receives the response. If USCIS does not act in time, it refunds the premium processing fee. Approval of Form I-140 is not a green card: USCIS says that for November 2026 employment-based applicants use the Dates for Filing chart in the Visa Bulletin when they file Form I-485.

Note 1