How the National Interest Waiver Works Under the Dhanasar Test

Junior Associate Attorney: Global Mobility & Corporate Immigration Strategy

Accurate as of

September 29, 2026

Yes: a national interest waiver (NIW) lets you file your own EB-2 green card petition with no job offer, no sponsoring employer and no labor certification, provided you qualify as an advanced degree professional or a person of exceptional ability. You must then prove the three prongs of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016): your proposed endeavor has substantial merit and national importance, you are well positioned to advance it, and on balance waiving the job offer benefits the United States.

Where does the waiver come from?

EB-2 normally requires a U.S. employer, a job offer and a labor certification from the Department of Labor. Section 203(b)(2)(B)(i) of the Immigration and Nationality Act allows USCIS to waive the job offer requirement, and with it the labor certification, when doing so is "in the national interest." Because no employer is needed, you may be the petitioner yourself.

The statute never defined "national interest." The current framework is Matter of Dhanasar, a precedent decision of the USCIS Administrative Appeals Office issued December 27, 2016, which vacated the earlier test in Matter of New York State Dep't of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998). USCIS applies it through Volume 6, Part F, Chapter 5 of the Policy Manual, most recently clarified in Policy Alert PA-2025-03 (January 15, 2025).

Step one: do you qualify for EB-2 at all?

Before Dhanasar is reached, the petition must establish the underlying EB-2 classification. PA-2025-03 states it directly: the petitioner "must first demonstrate the person's qualification for the underlying EB-2 visa classification." There are two ways in (8 CFR 204.5(k)(2) and (k)(3)).

Advanced degree professional. A U.S. degree above a bachelor's, or a foreign equivalent, in a profession. A U.S. bachelor's or foreign equivalent followed by at least five years of progressive post-baccalaureate experience in the specialty is treated as the equivalent of a master's degree.

Exceptional ability. "A degree of expertise significantly above that ordinarily encountered" in the sciences, arts or business, shown by at least three of six types of evidence (8 CFR 204.5(k)(3)(ii)):

An academic record showing a degree, diploma or certificate in the area of exceptional ability.
Letters documenting at least ten years of full-time experience in the occupation.
A license or certification to practice the profession or occupation.
A salary or other remuneration that demonstrates exceptional ability.
Membership in professional associations.
Recognition for achievements and significant contributions from peers, government entities, or professional or business organizations.

If these standards do not readily apply to your occupation, comparable evidence may be submitted (8 CFR 204.5(k)(3)(iii)). As with EB-1A, meeting three items is the threshold, not the conclusion; the officer then decides whether the evidence as a whole shows expertise significantly above the ordinary.

Step two: the three Dhanasar prongs

Prong 1: substantial merit and national importance

The question is about the proposed endeavor, meaning the specific work you will do in the United States, not your credentials. Dhanasar says merit may be shown "in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education." For national importance, the AAO looks at the endeavor's "potential prospective impact" and its "broader implications." Geography is not the test: a locally based endeavor can qualify if its effects reach beyond the people it directly serves.

PA-2025-03 asks for a "detailed description" of the endeavor and documentary support. It also addresses entrepreneurs specifically: "Broad assertions regarding general benefits to the economy and potential to create jobs will not establish an entrepreneur's qualification."

Prong 2: well positioned to advance the endeavor

Here your background matters. Dhanasar lists "the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities." You do not have to prove the endeavor is "more likely than not to ultimately succeed." USCIS considers advanced STEM degrees, particularly a Ph.D., a positive factor where the work furthers critical and emerging technologies or other areas important to U.S. competitiveness.

Prong 3: on balance, waive the job offer

The petitioner must show that the factors favoring a waiver outweigh the interest protected by labor certification. Dhanasar identifies relevant considerations, including whether it would be impractical to secure a job offer or labor certification (common for founders and self-employed researchers), whether the United States would benefit from your contributions "even assuming that other qualified U.S. workers are available," and whether the national interest in your contributions "is sufficiently urgent."

What evidence works

A written plan or endeavor statement that defines the work concretely: what, where, for whom, and with what measurable results.
Proof of past success in the same line of work: publications and citations, patents in use, products shipped, grants, contracts, revenue.
Independent letters. The Policy Manual gives weight to letters from experts with first hand knowledge who describe specific achievements, supported by other evidence; generic praise adds little.
Third party interest: letters of intent, investor commitments, government or institutional collaborators.
Evidence of broader impact: policy uptake, industry adoption, public health or security relevance.

What NIW does not require

No job offer. No employer. No labor certification recruitment. No showing of acclaim at the top of the field (that is the EB-1A standard; see The Ten EB-1A Criteria Explained). The regulation still requires the worker information portion of the Department of Labor form (8 CFR 204.5(k)(4)(ii)); the Form I-140 instructions specify the current version, and the Department of Labor does not certify it.

Key numbers

Filing fee: Form I-140, $715, plus the Asylum Program Fee: $600, or $300 at the small employer rate that self-petitioners commonly claim as an "individual" with 25 or fewer full-time equivalent employees (8 CFR 106.1(f), 106.2(c)(13)). Confirm with the USCIS Fee Calculator before filing.
Premium processing: available for NIW at $2,965 (since March 1, 2026, 91 FR 1059); the timeframe is 45 business days, not the 15 that applies to most I-140 classifications (8 CFR 106.4).
Visa availability (October 2026 Visa Bulletin, final action dates): EB-2 is at January 1, 2025 for all chargeability areas, Mexico and the Philippines (it was current in September); China is at October 1, 2021; India is at November 1, 2013, after being unavailable for the rest of fiscal year 2026 (see our EB-2 India analysis). Details are in our October 2026 Visa Bulletin analysis.
Standard processing: check the USCIS processing times page; we do not quote a figure we cannot confirm.

Status, stated precisely

Matter of Dhanasar is a binding AAO precedent and has been the governing NIW test since December 27, 2016. The Policy Manual guidance clarified by PA-2025-03 is in effect. Since August 5, 2026, officers may deny without first issuing a request for evidence, which makes a complete initial filing essential: see our analysis.

What to do

Confirm the EB-2 threshold first: an advanced degree (or bachelor's plus five years of progressive experience), or three of the six exceptional ability criteria.
Write a concrete endeavor statement before gathering letters, so every exhibit supports the same endeavor.
Build prong 2 with documents, not adjectives: results, adoption, funding, users, collaborators.
Address prong 3 expressly, explaining why labor certification is impractical or why the benefit does not depend on the labor market.
If you are Indian or Chinese born, compare EB-2 and EB-1 dates before choosing, and consider filing both: see EB-1A or NIW?.

Sources

Accurate as of September 29, 2026.