The Dhanasar test: three questions every NIW has to answer

Since late 2016, US immigration authorities have reviewed every National Interest Waiver using the same framework. It comes from a single decision, Matter of Dhanasar, and consists of three steps known as prongs. Understand them, and you can write your petition the way the agency reads it.

If you apply for a green card through the EB-2 NIW, you give up the strongest argument other applicants have: an employer saying it needs you, and a Department of Labor confirming that no American can fill the job. In its place comes a test. It has three steps, it has applied since December 27, 2016, and it comes from the decision in a single case. This guide shows you what each step asks, how USCIS interprets it in the Policy Manual, and the examples the agency itself uses to show where petitions fail.

1Where the test comes from

The law allows the job offer to be waived if the agency considers it in the national interest. It does not say what that means. In 1998, the immigration agency of the day set a first standard with Matter of New York State Department of Transportation. Among other things, it required the benefit to be "national in scope" and the national interest to be harmed if a labor certification were required.

USCIS's Administrative Appeals Office vacated that standard in 2016 and explained why. The word "intrinsic" in the first step invited subjective judgment. "National in scope" had too often been read geographically. And the third step had been phrased several different ways in the old decision itself, forcing applicants into exactly the comparison with American workers that the waiver is meant to spare them. The agency stated explicitly that it fit the self-employed and founders particularly poorly.

The case that produced the new standard involved an aerospace engineering researcher. He held three degrees in fields related to his endeavor, worked on government-funded projects, and planned to research and teach aerospace propulsion systems. The Texas Service Center had denied the petition. The Administrative Appeals Office sustained the appeal and approved it.

2Before the test: the EB-2 foundation

The Dhanasar test is the second hurdle, not the first. USCIS first checks whether you qualify for the EB-2 category: as a professional with an advanced degree or as a person of exceptional ability. The Policy Manual makes clear that the agency can deny without reviewing the NIW at all if this foundation is missing. It is just as clear that the foundation alone decides nothing: proving exceptional ability does not yet show that the waiver is in the national interest.

Your endeavor already matters at this stage. The agency wants you to describe your profession and endeavor clearly and simply. The profession is the one through which you carry out the endeavor, and it must be a professional occupation. If you rely on a bachelor's degree plus five years of experience, that experience has to be in the field. According to USCIS, a chemist who spent five years running a restaurant does not bring the equivalent of a master's in chemistry. The details on both routes are in the NIW requirements.

3Prong one: substantial merit and national importance

The first step asks about your endeavor, not about you. It has two parts. Substantial merit is usually the smaller hurdle. It can lie in business, entrepreneurship, science, technology, culture, health or education. Measurable economic impact is welcome but not required: even basic research can have merit if it never translates into money.

National importance is the bigger one. USCIS asks about the potential prospective impact of your specific endeavor and looks at its nature, not just its geographic reach. An endeavor can be nationally important because it has national or even global implications in its field, for example through improved manufacturing processes or medical advances. It can also be rooted in one region and still count, for example because it can create a significant number of jobs for American workers in an economically depressed area.

The Policy Manual uses its own examples to show where prong one fails. A benefit to a single employer is not enough, even one operating nationwide. The importance of the profession is not enough. Nor is the importance of the industry: if you want to open a car dealership, evidence of how important car sales are gets you nowhere. What counts is whether your own endeavor can have broader implications, for a field, a region or the public. How to frame your endeavor for this is covered in the guide to the proposed endeavor and business plan.

4Prong two: well positioned to advance the endeavor

The second step shifts the focus from the endeavor to you. Among other things, USCIS examines four points: your education, skills, knowledge and record of success in related efforts; a detailed plan you played a key role in developing; progress you have already made; and the interest you have generated among potential clients, users, investors or other stakeholders.

The agency lists a long range of possible evidence and stresses that it is not a checklist: degrees and licenses, patents and trademarks, publications and a strong citation record, media coverage of your work, evidence that others use your work, letters from potential clients or investors, contracts and licenses, federal, state or local grants, and investment from US investors in an amount that fits the endeavor.

Two lines from the Policy Manual are worth remembering. First: you do not have to show that your endeavor is more likely than not to succeed, but unsupported assertions do not meet your burden of proof. Second: the more central you are to the endeavor, the stronger your case. General experience in the field, on the other hand, is not enough. USCIS gives the example of someone who worked as a bank teller and now wants to advise banks nationwide. The role of recommendation letters here is covered in the guide to recommendation letters for the NIW.

5Prong three: balancing in favor of the waiver

The third step is a balancing test. On one side is the interest Congress protects with the job offer and labor certification: the jobs, wages and working conditions of American workers. On the other is the benefit the US gains from your endeavor. You have to show that the reasons for the waiver outweigh it.

The Dhanasar decision names several factors for this. Would it be impractical, given your qualifications or your endeavor, to secure a job offer or obtain a labor certification? USCIS itself gives founders and self-employed inventors as examples. Would the US benefit from your contribution even if other American workers were available? Is the national interest so urgent that going through labor certification would be inappropriate, for example with a time-sensitive benefit to health or security? The Policy Manual adds potential economic impact and job creation.

For entrepreneurs, USCIS makes a remarkable statement: if you are self-employed in a way that does not adversely affect American workers, or you are building a business that creates jobs for them, labor certification often offers little benefit. The limit is just as clear: a nationwide shortage in your occupation does not satisfy the third step on its own. More on the position of founders in the guide NIW for entrepreneurs and founders.

6STEM endeavors and letters from government agencies

The Policy Manual has specific guidance for endeavors in science, technology, engineering and mathematics. The analysis stays the same, but two points carry more weight. Under the second prong, an advanced degree, especially a PhD, in a field related to the endeavor and involving a critical or emerging technology or another area important to US competitiveness or security counts as an especially positive factor. Under the third prong, USCIS treats the combination of such a degree, such a field and a well-positioned endeavor as a strong positive factor.

Teaching in a STEM field, on the other hand, usually isn't enough on its own to show national importance, and a degree alone doesn't prove you are well positioned. Letters from interested US government agencies or quasi-governmental bodies, such as federally funded research centers, are not required. According to USCIS, though, they can help with all three prongs: with the first through their expertise, with the second through specific information about you, and with the third by pointing to urgency or benefit.

7Standard of proof and discretion

Each prong is assessed under the "preponderance of the evidence" standard. You have to show that each requirement is more likely than not met. The agency looks not only at how much evidence you submit but also at its quality: relevance, probative value and credibility.

Even if all three prongs are met, the NIW remains discretionary. The Dhanasar decision says USCIS "may" grant the waiver in that case, and the Administrative Appeals Office cites federal courts in its decisions that have confirmed this discretionary nature. A decision from August 6, 2026 shows how strict the review is: a computer scientist with a PhD wanted to develop machine learning methods for defect detection in semiconductor manufacturing. The agency recognized the merit but denied national importance, because the petition described the importance of the field rather than the impact of his own work, and dismissed the appeal.

8Structuring the petition around the prongs

USCIS itself offers a practical tip: a petition that addresses the questions in the order the agency reviews them makes it easier for the officer to find the relevant evidence. That order is the one this guide follows. First the EB-2 basis, then the endeavor with its merit and national importance, then your qualifications, and finally the balancing test.

In practice, this means every piece of evidence gets a place, and every place gets a reason. A recommendation letter that explains both the importance of your endeavor and your role in it belongs in both spots, with a sentence saying why. If USCIS requests more evidence, the request names the type of evidence missing; how to respond and what options remain after a denial are covered in the guide NIW denied. How long the review takes and how premium processing speeds it up is explained in Processing time and priority date.

In short

• Matter of Dhanasar, decided December 27, 2016, is the standard for every National Interest Waiver; it replaced the older standard from 1998.
• Before the test comes the EB-2 basis. Without it, USCIS can deny the petition without reviewing the NIW.
• First prong: the specific endeavor needs substantial merit and national importance. The importance of the industry doesn't count.
• Second prong: you must be well positioned to advance the endeavor. You don't have to prove success, but you do have to document what you've already achieved.
• Third prong: on balance, waiving the job offer and labor certification must make sense; a labor shortage alone isn't enough.

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