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Matter of Dhanasar: The Three-Prong EB-2 NIW Test, Explained

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), is the precedent USCIS uses to decide every EB-2 National Interest Waiver: the endeavor must have substantial merit and national importance, you must be well positioned to advance it, and on balance the waiver must benefit the United States.

EB-2 NIWMatter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)Verified 2026-10-07

Overview

Matter of Dhanasar is a precedent decision of the USCIS Administrative Appeals Office (AAO), decided December 27, 2016 and published at 26 I&N Dec. 884. It sets the test for the EB-2 National Interest Waiver (NIW). The waiver removes the job offer and the labor certification, so you can file the Form I-140 for yourself.

The decision's headnote states the rule: USCIS may grant a national interest waiver if the petitioner demonstrates "(1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements."

Two points come before the prongs. First, you must already qualify for EB-2 — as an advanced-degree professional or a person of exceptional ability. Dhanasar applies the test only "after eligibility for EB-2 classification has been established." Second, you prove each prong "by a preponderance of the evidence" — that is, more likely than not. Even if you meet all three, the waiver stays discretionary: USCIS "may approve the national interest waiver as a matter of discretion."

The petitioner in Dhanasar was an aerospace engineering researcher working on hypersonic propulsion. The AAO approved his research endeavor. It also found that his proposed STEM teaching did not show national importance, because the record did not show it "would impact the field of STEM education more broadly."

Self-petition: allowed

Yes. Dhanasar uses "petitioners" to mean both employers and "individuals who have filed petitions on their own behalf (namely, self-petitioners)." The USCIS EB-2 page says those seeking a national interest waiver "may self-petition" and do not need a labor certification from the Department of Labor. The test is the same whether you or an employer files.

Criteria

The three prongs, quoted from the framework section of Matter of Dhanasar (26 I&N Dec. at 889). You must meet every prong; failing one is enough for a denial.

You must meet: all three prongs, by a preponderance of the evidence

  1. 1"the foreign national's proposed endeavor has both substantial merit and national importance"
  2. 2"the foreign national is well positioned to advance the proposed endeavor"
  3. 3"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 1 — Substantial merit and national importance

This prong looks at the endeavor, not at you. Dhanasar says merit can come from "a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education." Economic impact helps but "is not required." Research and pure science "may qualify, whether or not" it leads to economic benefits.

For national importance, USCIS looks at the endeavor's "potential prospective impact." Dhanasar replaced the old phrase "national in scope" on purpose, to "avoid overemphasis on the geographic breadth of the endeavor." A local project can still be nationally important if it has broader implications — for example, "significant potential to employ U.S. workers" or "other substantial positive economic effects, particularly in an economically depressed area."

The endeavor must be specific. The Policy Manual says the endeavor "is more specific than the general occupation." In Dhanasar, the occupation was engineer; the endeavor was research and development on air and space propulsion systems.

  • Typical evidence (from the Policy Manual): a detailed, plain description of the endeavor, plus documents showing its prospective impact on a field, a region, or the public — for example, evidence of wide interest in adopting or licensing a technology, or the public-health benefit of a drug, rather than one company's profits.
  • Government or quasi-government letters are not required but, per the Policy Manual, can be relevant to all three prongs.

Prong 2 — Well positioned to advance the endeavor

This prong "shifts the focus from the proposed endeavor to the foreign national." Dhanasar lists factors "including, but not limited to": your education, skills, knowledge, and record of success in related efforts; a model or plan for future activities; progress toward the endeavor; and the interest of potential customers, users, investors, or others.

You do not need to prove the endeavor will succeed. Dhanasar says: "We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed." But you must still show, more likely than not, that you are well positioned to advance it.

  • Degrees, certificates, or licenses in the field.
  • Patents, published articles, media about your work, and citation history or other evidence that others use or build on your work.
  • A plan for continuing the work in the United States, and evidence of progress already made.
  • Letters, contracts, investment, grants, or other support from customers, users, investors, or government entities.
  • The Policy Manual adds that expert letters are most persuasive when they come from people with first-hand knowledge, give specific examples, and are "supported by other independent evidence." It says the same of business plans.

Prong 3 — On balance, the waiver benefits the United States

Here USCIS weighs the waiver against the job-offer and labor-certification process, which exists to protect U.S. workers. Dhanasar says USCIS "may evaluate factors such as":

  • whether, given your qualifications or endeavor, "it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification";
  • whether, "even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions"; and
  • whether the national interest in your contributions "is sufficiently urgent to warrant forgoing the labor certification process."
  • Dhanasar adds that this prong, unlike the old test, "does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner's field."
  • The Policy Manual adds that evidence of a national labor shortage in your occupation "would not, by itself, satisfy this third prong."

Common reasons a prong fails

This list comes only from the USCIS Policy Manual's own examples and from recent AAO non-precedent decisions we read. Non-precedent decisions do not bind other cases; they show how the test is being applied.

  • Prong 1 — the endeavor is described as an occupation, not a specific project. The Policy Manual says to describe "specific projects and goals," not to list a job's duties.
  • Prong 1 — the benefit stays with one employer or its clients. The Policy Manual says benefits to a specific employer alone, "even an employer with a national footprint," are not enough. The AAO dismissed appeals on this ground on Aug. 31, 2026 (AUG312026_01B5203, a healthcare data scientist) and Aug. 26, 2026 (AUG262026_01B5203, a seismology researcher).
  • Prong 1 — relying on the importance of the field or of a shortage. Classroom teaching without broader implications, working in a shortage occupation, or general claims that entrepreneurs create jobs are each, by the Policy Manual's examples, not enough alone.
  • Prong 2 — claims without corroboration. The Policy Manual says "unsubstantiated claims would not meet the petitioner's burden of proof." In AUG282026_01B5203 (Aug. 28, 2026), the AAO found that citations showed "some degree of interest" from peers but not enough to show the petitioner was well positioned.
  • Before the prongs — EB-2 itself is not shown. If you do not qualify as an advanced-degree professional or a person of exceptional ability, the Policy Manual says USCIS may deny "without reaching the national interest waiver determination."

How Dhanasar replaced NYSDOT (1998)

Before Dhanasar, NIW petitions were judged under Matter of New York State Dep't of Transp. ("NYSDOT"), 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998). NYSDOT asked whether the area of employment had "substantial intrinsic merit," whether the benefit would be "national in scope," and whether the national interest "would be adversely affected if a labor certification were required."

Dhanasar explains what went wrong. The word "intrinsic" invited subjective judgments. "National in scope" was sometimes read too narrowly, as a question of geography. The third prong caused "the greatest confusion": NYSDOT stated it several different ways, and a footnote's "influence" standard became, in practice, "the primary yardstick." The old third prong also pushed petitioners to compare themselves with unidentified U.S. workers — the labor-market test the waiver is meant to skip — and it fit self-employed people and entrepreneurs poorly.

So the AAO wrote: "Today, we vacate NYSDOT and adopt a new framework." The headnote marks NYSDOT "vacated." The new test keeps merit, replaces "national in scope" with national importance, adds a prong about the person, and turns the third prong into an open balancing test.

Cost & timeline

Government fees

Dhanasar sets the legal test, not the fees. A Dhanasar-based petition is a Form I-140. Current I-140, Asylum Program Fee, and premium processing amounts are on our EB-2 NIW requirements guide, taken from the USCIS fee schedule (Form G-1055).

Typical timeline

Dhanasar does not set processing times. Premium processing for I-140 NIW petitions (classification E21 NIW) means USCIS takes action — an approval, denial, request for evidence, or notice of intent to deny — within 45 business days; it does not mean approval. After approval, a green card still depends on priority-date availability in the State Department Visa Bulletin.

No outcome promise. Each petition is decided on its own record, and the waiver is discretionary even when all three prongs are met.

Doing it yourself vs. an attorney

You can file an NIW yourself, and the Dhanasar test is public. The hard part is the record: a clear, specific endeavor, independent evidence of its broader impact, and corroborated proof that you are positioned to carry it out.

JustiGuide helps you organize your evidence prong by prong so gaps are visible early. A licensed immigration attorney should shape the legal argument and review the petition, especially on national importance — the prong where the AAO decisions we read most often found the record short.

Have documents for this already?

The hard part of EB-2 NIW is structuring your evidence to the criteria above. Drop your documents and our team will organize them into a JustiGuide profile mapped to each requirement — so you (and any attorney you work with) start from an organized record, not a folder of PDFs.

Organize my documents

Frequently asked questions

What is the Dhanasar three-prong test?
It is the standard USCIS uses for EB-2 National Interest Waivers, from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016): (1) the proposed endeavor has substantial merit and national importance; (2) you are well positioned to advance it; and (3) on balance, it benefits the United States to waive the job offer and labor certification. You must meet all three.
Is Matter of Dhanasar still the law in 2026?
Yes. The USCIS Policy Manual (Vol. 6, Part F, Ch. 5, current as of Oct. 2, 2026) still lists the same three prongs and cites Dhanasar. The January 15, 2025 Policy Manual update added guidance on how USCIS applies the test; it did not replace it. AAO decisions issued in August 2026 still apply the Dhanasar framework.
Do I have to prove my project will succeed?
No. Dhanasar says USCIS does not require petitioners "to demonstrate that their endeavors are more likely than not to ultimately succeed." You do have to show, more likely than not, that you are well positioned to advance the endeavor.
Does my endeavor have to be national in geographic reach?
No. Dhanasar replaced NYSDOT's "national in scope" test with "national importance" to avoid focusing on geography. A regional endeavor can qualify if it has broader implications — for example, significant potential to employ U.S. workers in an economically depressed area.
What replaced NYSDOT?
Matter of Dhanasar vacated Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (1998), and adopted the current three-prong framework. The biggest change was the third prong: it no longer requires showing harm to the national interest or comparing you with U.S. workers.
Is meeting all three prongs a guarantee of approval?
No. Dhanasar says that if the three elements are satisfied, USCIS "may approve the national interest waiver as a matter of discretion." The petitioner must also show they merit a favorable exercise of discretion.
This page is general legal information based on Matter of Dhanasar (binding AAO precedent), the USCIS Policy Manual, and 8 CFR — not legal advice. AAO non-precedent decisions are cited only as examples and do not bind USCIS in other cases. Whether your endeavor meets the three prongs is a question for a licensed immigration attorney. JustiGuide connects you with one.