The Dhanasar test for a National Interest Waiver: the EB-2 threshold and the three prongs

Where does the Dhanasar test come from?

Matter of Dhanasar is a 2016 precedent decision of the USCIS Administrative Appeals Office (AAO). It replaced the earlier 1998 framework from Matter of New York State Department of Transportation, whose third prong asked petitioners to prove harm to the national interest or compare themselves with unidentified US workers. The AAO found that test hard to apply, especially to entrepreneurs and other self-employed people.

Under Dhanasar, USCIS may grant the waiver as a matter of discretion if the petitioner shows all three prongs by a preponderance of the evidence, meaning more likely than not. The waiver covers both the job offer and the labor certification, the Department of Labor process that tests the US job market.

Sources: Matter of Dhanasar, 26 I&N Dec. 884, 888-891 (AAO 2016); USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.1

The threshold: EB-2 first

If the person does not qualify for EB-2, the petition is statutorily ineligible for the waiver, and USCIS may request evidence, issue a notice of intent to deny or deny without reaching the three prongs. The petitioner must also describe, plainly, both the occupation and the proposed endeavor, which is more specific than the occupation.

• Advanced degree professional: a US degree above a bachelor's or a foreign equivalent, or a bachelor's followed by at least five years of progressive experience in the specialty; if the specialty customarily requires a doctorate, a doctorate is needed. The experience must come after the bachelor's, and experience unrelated to the degree, the endeavor or both may not qualify; a chemistry degree followed by five years managing a restaurant generally does not equal a chemistry master's. The occupation itself must be a profession: one listed in INA 101(a)(32) or one where a bachelor's is the minimum for entry.
• Exceptional ability: expertise significantly above that ordinarily encountered in the sciences, arts or business, shown by at least three of six types of evidence and a final merits review. A degree alone is not enough. For an NIW, the area of exceptional ability must be directly related to the proposed endeavor.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.1; 8 CFR 204.5(k)(2), definitions; USCIS Policy Alert PA-2025-03, 15 January 2025

Prong 1: substantial merit and national importance

This prong is about the endeavor, not the person. Merit can be in business, entrepreneurship, science, technology, culture, health or education, and need not be economic: research and pure science can qualify even without a likely economic return.

National importance looks at the endeavor's potential prospective impact, not just its geographic reach. An endeavor can matter nationally because it has broad implications for a field, such as improved manufacturing processes or medical advances, or because it could employ US workers at a significant level for the region or have other substantial economic effects, particularly in an economically depressed area.

• Classroom teaching without broader implications for a field or region generally does not show national importance.
• Working in an occupation with a national shortage, or consulting for people in one, is not enough alone.
• Benefits to one employer, even one with a national footprint, are not enough. A drug developer can point to public health benefits rather than company profits; a technology developer can show widespread interest in adoption or licensing.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, first prong; Matter of Dhanasar, 26 I&N Dec. 884, 888-891 (AAO 2016)

Prong 2: well positioned to advance the endeavor

This prong shifts to the person. USCIS considers education, skills, knowledge and record of success in related efforts; a detailed plan the person developed or helped develop; progress so far; and interest from potential customers, users, investors or others. The endeavor does not have to be more likely than not to succeed, but unsupported claims do not meet the burden. The more integral the person is to the endeavor, the stronger this prong.

The Policy Manual lists evidence that may help, while saying it is not a checklist:

• Degrees, certificates or licenses; patents, trademarks or copyrights; published articles or media reports about the person's work.
• A strong citation history, or evidence that others have adopted or built on the work.
• A plan for continuing the work in the US, and correspondence from prospective customers, users or investors.
• Investment from US investors in amounts appropriate to the endeavor; contracts, agreements or licenses; government awards, grants or in-kind support.
• Letters from experts with first-hand knowledge that give specific examples and are supported by independent evidence. Business plans should be backed by independent evidence too.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, second prong; Matter of Dhanasar, 26 I&N Dec. 884, 888-891 (AAO 2016)

Prong 3: on balance, the waiver benefits the United States

Here the petitioner shows that the factors for waiving the job offer outweigh those behind the labor certification, which protects US workers' jobs, wages and conditions. Having an employer that has applied or could apply for labor certification does not bar a waiver. Not every factor is needed, but taken together they must tip the balance.

• Whether labor certification would be impractical given the person's qualifications or endeavor, for example because it cannot capture unique knowledge beyond the minimum job requirements.
• Whether the US would benefit from the person's contributions even if qualified US workers are available.
• Whether the national interest is urgent enough to skip labor certification, such as a time-sensitive public health or safety benefit.
• Potential for considerable economic impact, such as economic revitalization, or for job creation.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, third prong; Matter of Dhanasar, 26 I&N Dec. 884, 888-891 (AAO 2016)

STEM endeavors and government letters

USCIS treats an advanced STEM degree, especially a Ph.D., tied to the endeavor and to a critical and emerging technology or another STEM area important to US competitiveness or national security, as an especially positive factor under prong 2. Under prong 3, that degree together with such work and a well-positioned person is a strong positive factor. A degree alone does not show the person is well positioned.

Letters from interested US government agencies or quasi-governmental entities, such as federally funded research and development centers, are not required but can bear on all three prongs.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Sections D.4 and D.5

What changed in 2025?

Three USCIS policy alerts in 2025 touched Policy Manual Volume 6, Part F, Chapter 5, which governs the NIW. Each took effect immediately for requests pending or filed on or after its date.

• 15 January 2025 (PA-2025-03): EB-2 qualification must be shown before the waiver is considered; USCIS decides case by case whether the occupation is a profession and whether experience is in the specialty; exceptional ability must relate to the endeavor; more examples on national importance, letters and business plans; and not every entrepreneur qualifies, since broad claims about economic benefit and job creation do not establish eligibility.
• 4 August 2025 (PA-2025-14): it is not in the national interest to waive the job offer for male athletes whose proposed endeavor is to compete in women's sports. The same alert brought earlier NIW content into Chapter 5.
• 18 December 2025 (PA-2025-31): concerns labor certification-based petitions for professional athletes, whose Department of Labor certifications filed through the FLAG system no longer show minimum job requirements. It changes the athlete section of Chapter 5, not the three prongs.

Sources: USCIS Policy Alert PA-2025-03, 15 January 2025; USCIS Policy Alert PA-2025-14, 4 August 2025; USCIS Policy Alert PA-2025-31, 18 December 2025

Where the prongs can fall short

These patterns come from the Policy Manual and do not predict any case.

• Describing an occupation's duties instead of a specific endeavor with projects and goals.
• Arguing the importance of the industry or profession instead of this endeavor.
• Claims about job creation or economic benefit with no evidence behind them.
• Relying on a national labor shortage for prong 3.
• A business plan or letters that nothing independent corroborates.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, first prong; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, third prong; USCIS Policy Manual, Volume 6, Part F, Chapter 5, Section D.3, second prong

How Visa Trouble can help

Free route discovery at Visa Trouble covers EB-1A and the National Interest Waiver alongside other green card paths. We’re building application preparation for both; it is planned, not open yet. Visa Trouble is not a law firm and does not give legal advice.

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