NIW and the Dhanasar Test: A Prong-by-Prong Guide

One Decision Governs Every NIW Case

The National Interest Waiver (NIW) lets a professional with an advanced degree, or a person of exceptional ability, obtain an EB-2 green card without a job offer and without a PERM labor certification. That makes it one of the few employment-based green card paths an individual can pursue on their own.

Since December 2016, every NIW petition has been decided under a single framework: the three-prong test the Administrative Appeals Office (AAO) adopted in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). USCIS expanded its written guidance on that test in January 2025.

This guide walks through each prong using the language of the decision itself, explains what the 2025 guidance adds, and covers a point many applicants do not learn until too late: what happens if the petition is denied.

Step Zero: EB-2 Eligibility Comes First

Before USCIS reaches the Dhanasar test at all, the petitioner must qualify for the underlying EB-2 classification. Dhanasar says so directly, and USCIS's January 2025 Policy Manual update made it an explicit first step (Policy Alert PA-2025-03; 6 USCIS-PM F.5).

There are two ways in:

Advanced degree. A U.S. degree above a bachelor's, or a foreign equivalent. A bachelor's degree followed by at least five years of progressive experience in the specialty counts as the equivalent of a master's (8 CFR 204.5(k)(2)).
Exceptional ability. Expertise significantly above that ordinarily encountered in the sciences, arts, or business, shown by at least three of six regulatory criteria, such as a related degree, ten years of full-time experience, a professional license, a salary demonstrating exceptional ability, professional memberships, or recognition from peers or organizations (8 CFR 204.5(k)(2), (k)(3)(ii)).

Two clarifications from the 2025 guidance matter here. USCIS decides case by case whether the occupation in which you propose to work is a profession and, for the bachelor's-plus-five-years route, whether your experience is in the specialty. And if you qualify through exceptional ability, USCIS looks at how that ability relates to the endeavor you are proposing, considering any shared skills, knowledge, or expertise.

One more point from Dhanasar itself: qualifying for EB-2 is necessary but not sufficient. Showing "a degree of expertise significantly above that ordinarily encountered" does not, by itself, earn the waiver (26 I&N Dec. at 886 n.3).

Can You File for Yourself?

Yes. USCIS's 2025 guidance states plainly that people seeking a national interest waiver can file the petition on their own behalf, and Dr. Dhanasar was himself a self-petitioner with advanced degrees.

If you read the regulations, this can look confusing: 8 CFR 204.5(k)(4)(ii) appears to limit the waiver to people of exceptional ability. Dhanasar explains why that is no longer the rule. A 1991 statute amended INA § 203(b)(2)(B)(i) to extend the waiver to members of the professions holding advanced degrees, superseding that part of the regulation (26 I&N Dec. at 885 n.1).

Why Dhanasar Replaced the Old Test

From 1998 to 2016, NIW petitions were decided under Matter of New York State Dep't of Transportation (NYSDOT). In Dhanasar, the AAO explained that NYSDOT's third prong had "generated the greatest confusion for petitioners and adjudicators." It was stated several different ways, it could be read to require evidence of harm to the national interest or a comparison against unidentified U.S. workers, and it was "particularly ill-suited" to self-employed people such as entrepreneurs. Dhanasar vacated NYSDOT and adopted a framework the AAO described as clearer and more flexible.

The Three Prongs

Under Dhanasar, 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 job offer and labor certification requirements.

Prong 1: Substantial Merit and National Importance

The first prong is about the endeavor, not the person.

Merit can be shown in a range of areas, including business, entrepreneurship, science, technology, culture, health, and education. Potential economic impact can help but is not required. The decision specifically notes that research, pure science, and the furtherance of human knowledge may qualify whether or not they are likely to translate into economic benefits.

National importance turns on the endeavor's potential prospective impact. The AAO deliberately moved away from NYSDOT's "national in scope" language to avoid overemphasizing geography. An endeavor focused on one region can still have national importance, and the decision gives the example of an endeavor with significant potential to employ U.S. workers or other substantial positive economic effects, "particularly in an economically depressed area."

Dhanasar itself shows how this prong separates endeavors. Dr. Dhanasar proposed two activities: hypersonic propulsion research and STEM teaching. The AAO found the research met the first prong, relying on expert letters from people in senior positions in academia, government, and industry, and on evidence of congressional interest in hypersonic technology. The teaching did not. The AAO agreed STEM teaching has substantial merit, but found no evidence that his teaching would impact STEM education more broadly, so it failed the national importance element.

USCIS's 2025 guidance adds a caution aimed at entrepreneurs: not every entrepreneur qualifies, and broad assertions about general benefits to the economy and the potential to create jobs will not, on their own, establish eligibility.

Prong 2: Well Positioned to Advance the Endeavor

The second prong shifts to the person. The decision lists factors including, but not limited to:

Education, skills, knowledge, and record of success in related or similar efforts
A model or plan for future activities
Progress toward achieving the proposed endeavor
The interest of potential customers, users, investors, or other relevant entities or individuals

Importantly, the AAO does not require proof that the endeavor is more likely than not to succeed. It acknowledged that many innovations and ventures fail despite an intelligent plan and competent execution. What the petitioner must show, by a preponderance of the evidence, is that they are well positioned to advance it.

In Dhanasar, the evidence included three graduate degrees in related fields, research supporting Department of Defense goals, detailed expert letters, and documentation that he played a significant role in projects funded by NASA and the Air Force Research Laboratory. The AAO pointed to the sustained interest and funding from those government entities as corroborating the significance of his work.

The 2025 guidance explains how USCIS evaluates letters of support and business plans under this prong, and it emphasizes that evidence is weighed in the aggregate. No single document, by itself, necessarily establishes eligibility.

Prong 3: On Balance, Beneficial to Waive the Requirements

The third prong is a balancing test. Congress generally requires job offers and labor certifications to protect U.S. workers, but it also created the waiver for cases where other national interests outweigh that process. The AAO listed factors USCIS may consider, such as:

Whether it would be impractical for the person to secure a job offer, or for a petitioner to obtain a labor certification, given their qualifications or endeavor. The decision mentions unique knowledge or skills that are not easily articulated in a labor certification, and entrepreneurs or self-employed inventors who would struggle to secure a job offer from a U.S. employer.
Whether, even assuming qualified U.S. workers are available, the United States would still benefit from the person's contributions
Whether the national interest in the person's contributions is sufficiently urgent to warrant forgoing labor certification

Unlike NYSDOT, this prong does not require showing harm to the national interest or comparing the petitioner to U.S. workers in the field. The factors considered must, taken together, show that on balance the waiver would benefit the United States.

The Standard of Proof, and Discretion

The petitioner must prove each prong by a preponderance of the evidence, meaning it is more likely than not true. USCIS considers both the quantity and the quality of the evidence, including its relevance, probative value, and credibility (Dhanasar, citing Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)).

Even when all three prongs are met, the statute says USCIS "may" grant the waiver, and Dhanasar describes approval as a matter of discretion. The petitioner must also show that they otherwise merit a favorable exercise of that discretion.

If the Petition Is Denied: Courts Generally Cannot Step In

That discretion has a significant practical consequence. Two federal appeals courts have held that federal courts lack jurisdiction to review USCIS's denial of a national interest waiver:

In Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019), the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips federal courts of jurisdiction to review an NIW denial, because the statute specifies that the waiver is in the agency's discretion. The court noted that constitutional claims are not barred by that provision, though the petitioner's due process claim failed on its merits.
In Brasil v. Secretary, Department of Homeland Security, 28 F.4th 1189 (11th Cir. 2022), the Eleventh Circuit reached the same conclusion and rejected the argument that the Dhanasar framework supplies a standard clear enough for courts to apply.

The Ninth Circuit relied on both decisions again in September 2026, in Barman v. United States, when applying a similar jurisdictional bar.

In both Poursina and Brasil, the petitioner had first appealed to the AAO, which dismissed the appeal. The practical lesson is that, in these circuits, the record built before USCIS, including any appeal or motion within the agency, is generally the record that decides the case.

Timing and Visa Availability

Premium processing is available for NIW petitions. USCIS must take action, meaning an approval, denial, or request for evidence, within 45 business days, and the premium processing fee is $2,965 (8 CFR 106.4(c)(18), (e)(18)). That is longer than the 15-business-day timeframe for EB-1A petitions.

An approved NIW petition places you in the EB-2 category. When you can actually obtain the green card depends on visa availability for your country of birth, published monthly in the U.S. Department of State's Visa Bulletin. Your spouse and unmarried children under 21 may receive the same status as derivatives (INA § 203(d)).

Planning Points Drawn From the Decision and the Guidance

None of these points guarantees an outcome, but each tracks something Dhanasar or USCIS's guidance relies on:

Define the endeavor specifically. Prong 1 evaluates the specific endeavor you propose, and Dhanasar shows that two endeavors by the same person can be evaluated separately, with different results.
Show national importance, not just merit. The teaching endeavor in Dhanasar had merit but failed because the record did not show broader impact.
Avoid relying on generic economic claims. The 2025 guidance says broad assertions about the economy and job creation will not, on their own, establish eligibility for entrepreneurs.
Connect your qualifications to the endeavor. Under the 2025 guidance, USCIS looks at whether experience is in the specialty and how exceptional ability relates to the proposed endeavor.
Corroborate with independent, specific evidence. In Dhanasar, expert letters described the research in detail and were corroborated by sustained government funding and documentation of his role in funded projects.
Build the full record at the agency level. Under Poursina and Brasil, federal courts in those circuits will not reweigh the evidence later.

Key Takeaways

Every NIW petition is decided under the three-prong Matter of Dhanasar framework, after the petitioner first establishes EB-2 eligibility.
Prong 1 asks whether the specific endeavor has substantial merit and national importance; geography is not the test.
Prong 2 asks whether you are well positioned to advance the endeavor; you do not need to prove it will succeed.
Prong 3 balances the benefits of waiving labor certification; it does not require proving harm or comparing you to U.S. workers.
USCIS's 2025 guidance cautions that broad economic and job-creation assertions are not enough on their own.
At least two federal appeals courts have held that NIW denials are not subject to judicial review, so the record built before USCIS carries particular weight.

Considering a National Interest Waiver? Learn more about the NIW, or schedule a consultation to discuss whether your work fits the Dhanasar framework.

Sources and References

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
USCIS Policy Alert PA-2025-03, Second Preference Eligibility for National Interest Waiver Petitions (Jan. 15, 2025)
USCIS Policy Manual, Volume 6, Part F, Chapter 5
8 CFR 204.5(k): EB-2 definitions, evidence, and the waiver
8 CFR 106.4: Premium processing fees and timeframes
INA § 203(b)(2) and § 203(d)
Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019)
Brasil v. Secretary, Department of Homeland Security, 28 F.4th 1189 (11th Cir. 2022)

This document provides general information only and does not constitute legal advice. Immigration law is complex and individualized. Outcomes depend on specific facts and circumstances. No results are guaranteed. Always consult with a qualified immigration attorney before making decisions about your immigration case.