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Matter of Dhanasar: the three-prong test for the national interest waiverMatter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

In brief: In December 2016, the USCIS Administrative Appeals Office (AAO), in the precedent decision Matter of Dhanasar, vacated the old standard from the 1998 NYSDOT case and established the current three-prong NIW test: the proposed endeavor has substantial merit and national importance; the applicant is well positioned to advance the endeavor; and, on balance, it would benefit the United States to waive the job offer and labor certification requirements. As of October 2026, it remains the framework for reviewing NIW petitions.

The case at a glance

Item	Details
Case name	Matter of Dhanasar
Decided by	U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO), precedent decision
Citation	26 I&N Dec. 884 (AAO 2016); Interim Decision #3882
Decision date	December 27, 2016
Outcome	The Texas Service Center's denial was set aside, the appeal was sustained, and the I-140 was approved
Law involved	INA 203(b)(2)(A) (EB-2); INA 203(b)(2)(B)(i) (national interest waiver); 8 CFR 204.5(k)
Subject	The standard for the EB-2 national interest waiver (NIW)
Current status	Still a valid precedent and the current framework for reviewing NIW petitions (as of October 2026). The USCIS Policy Manual added guidance on how to apply it in January 2022 and January 2025, without changing the three prongs themselves
Decision text	DOJ EOIR precedent decisions (26 I&N Dec. 884)

Background: why the old NYSDOT standard was replaced

EB-2 employment-based immigration generally requires a U.S. employer's job offer and labor certification (PERM). INA 203(b)(2)(B)(i) lets the government waive this requirement when it is "in the national interest," but the statute does not define "national interest." In 1998, the legacy INS set out a three-part test in Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998): the area of employment must have substantial intrinsic merit; the proposed benefit must be national in scope; and the applicant must show that he or she would serve the national interest to a substantially greater degree than would an available U.S. worker with the same minimum qualifications, such that requiring labor certification would adversely affect the national interest.

For nearly two decades afterward, that test drew heavy criticism in practice. In Dhanasar, the AAO itself identified its problems: the "national in scope" requirement was easily read to mean the work had to be carried out nationwide; the third prong was unclear, and it was especially hard to apply to entrepreneurs and self-employed individuals.

Facts

The applicant, Dhanasar, was a researcher in aerospace engineering who held two master's degrees (mechanical engineering and applied physics) and a Ph.D. in engineering from North Carolina Agricultural and Technical State University (North Carolina A&T). His proposed endeavor was to research and develop air and space propulsion systems, focusing on hypersonic propulsion (above Mach 5) and computational fluid dynamics, while also teaching aerospace engineering at that university.

The USCIS Texas Service Center accepted that he qualified for EB-2 as an advanced degree professional, but concluded that a national interest waiver should not be granted and denied the I-140. He appealed to the AAO. The AAO used the case to reformulate the NIW standard and designated its decision as precedent.

Issues

Should the old NYSDOT standard continue to apply?
If not, what standard should be used to decide NIW cases?
Under the new standard, did Dhanasar's research and teaching qualify for a national interest waiver?

How the AAO decided

The AAO vacated NYSDOT and established a new three-prong test. The petitioner must show by a preponderance of the evidence that all three prongs are met before USCIS may grant the waiver as a matter of discretion:

Prong one: substantial merit and national importance

The proposed endeavor must have both substantial merit and national importance. Merit may be shown in many areas, including business, entrepreneurship, science, technology, culture, health and education, and direct economic benefit is not required. National importance looks at the endeavor's potential impact, not just its geographic reach: for example, national or global implications, advancing a field, or significant potential to create jobs (particularly in economically depressed areas). This prong focuses on the "endeavor" itself, not on the applicant's personal credentials.

Prong two: the applicant is well positioned to advance the endeavor

The focus shifts to the applicant: is he or she "well positioned to advance the proposed endeavor"? The factors the AAO listed include, but are not limited to, the applicant's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; progress toward achieving the endeavor; and the interest of potential customers, users, investors or other relevant parties. The AAO made clear that the applicant does not have to prove that the endeavor will succeed.

Prong three: on balance, waiving the requirements benefits the United States

The applicant must show that, on balance, it would benefit the United States to waive the job offer and labor certification requirements. The considerations the AAO listed include whether, in the applicant's particular circumstances, it would be impractical to obtain a job offer or labor certification; whether the United States would still benefit from the applicant's contributions even if other qualified U.S. workers are available; and whether the national interest in the applicant's contributions is urgent enough to forgo the labor certification process. Unlike NYSDOT, the new test no longer requires the applicant to be compared with U.S. workers or to show that labor certification would harm the national interest. The AAO also noted that for people such as self-employed entrepreneurs, who have difficulty obtaining a job offer, labor certification may not be realistic, and this can be considered under the third prong.

Applying the test to this case

The AAO found that Dhanasar's hypersonic propulsion research had substantial merit and national importance, that his education, research experience and results showed he was well positioned to advance that research, and that, on balance, waiving labor certification would benefit the United States, so it approved the petition. As to his teaching, however, the AAO found the evidence insufficient to show an impact beyond the students he taught or on STEM education more broadly, so it did not meet the national importance element of prong one. This distinction shows that different parts of the same person's work can be evaluated differently, and the "endeavor" must be defined specifically.

What it means for applicants

Researchers and engineers: You no longer have to show that you are "better than comparable U.S. workers." Instead, define your research project clearly and use evidence such as publications, citations, research funding, collaborations and recommendation letters to show its significance and your capability.
Entrepreneurs: Dhanasar opened a path for entrepreneurs, but that does not mean "start a company and you qualify for NIW." You need a concrete business plan, progress to date and third-party interest (such as investment, contracts or customers) to support it.
Mid-career professionals: NIW does not require that you already be at the top of your field (unlike EB-1A), but you must first meet EB-2's advanced degree or exceptional ability requirements.
All applicants: The "proposed endeavor" must be specific; a job title is not enough. USCIS examines the endeavor's potential impact, not just your employer or industry.

Later developments: two USCIS Policy Manual updates

January 21, 2022 update

USCIS updated its NIW guidance in the Policy Manual (Volume 6, Part F, Chapter 5), focusing on how Dhanasar applies to people in STEM fields and to entrepreneurs:

Officers may consult lists of critical and emerging technologies published by the Executive Office of the President, the National Science and Technology Council or the National Security Council;
An advanced STEM degree directly related to the proposed endeavor, particularly a Ph.D., can be a favorable factor, but a degree alone is not enough to show the applicant is well positioned to advance the endeavor;
In the third-prong balancing, endeavors that support national security or enhance economic competitiveness, and petitions with letters of support from interested U.S. government agencies, receive more weight;
It recognized that entrepreneurs' paths differ from traditional research and listed types of evidence that can be submitted, such as ownership and role in a U.S. business, investment received, incubator or accelerator participation, awards and grants, intellectual property, revenue and job creation, and third-party letters.

January 15, 2025 update

USCIS updated the same chapter again, effective immediately and applicable to pending petitions and those filed afterward. The main points include:

Emphasizing that basic EB-2 eligibility (advanced degree or exceptional ability) is reviewed first, and that the proposed endeavor and occupation are part of that review;
Further examples of how to determine "national importance";
Explaining how evidence such as recommendation letters and business plans is evaluated;
Additional evidentiary considerations for entrepreneurs, noting that not every entrepreneur qualifies for NIW, and that general claims of economic benefit and job-creation potential are not, by themselves, enough to show national importance;
Retaining the guidance relating to people with advanced STEM degrees.

Neither update changed Dhanasar's three prongs; both refined how evidence is evaluated. As of October 2026, we have not found any new precedent overruling or modifying Dhanasar. The Policy Manual may continue to change, so before filing, check the current version of the USCIS Policy Manual.

Practical tips

Confirm EB-2 eligibility first. Evidence of degree equivalency, five years of progressive experience or exceptional ability has to hold up first; otherwise there is no Dhanasar analysis to do.
Define the "endeavor" specifically. Explain what you will do, where and how, and what potential impact it has on which field or which groups. Avoid statements like "I am an engineer" or "I will start a company."
Support national importance with evidence, such as industry or government reports, citations and real-world use, or attention from government or institutions; do not rely on general claims of economic benefit.
Let the record speak for prong two: published work, funding, patents, contracts, customers and investment are more persuasive than subjective praise. Recommendation letters should state specific facts, not adjectives.
Make an actual argument on prong three, explaining why labor certification is impractical or inappropriate in your situation and why the United States benefits from your work.
If you receive a request for evidence, see How to respond to an RFE.

Frequently asked questions

Which petitions does Dhanasar apply to?

It applies to I-140 petitions in the EB-2 category requesting a national interest waiver. Applicants can file on their own, without an employer or labor certification. EB-1A uses a different standard.

Does "national importance" mean my work has to cover the whole country?

No. Dhanasar emphasizes the endeavor's potential impact, not its geographic scope. An endeavor carried out in one region but with an important impact on a field or a broader population can have national importance. Conversely, work that affects only a single employer or a few clients is usually hard to qualify.

Can entrepreneurs use NIW?

They can apply, but must show that the business endeavor itself has national importance and that they are well positioned to advance it. The January 2025 Policy Manual update made clear that general claims of economic benefit and job creation are not enough on their own; a concrete plan and progress to date are needed.

Is a Ph.D. enough to get NIW approved?

There is no guarantee. A STEM Ph.D. is a favorable factor in the Policy Manual, but each of the three prongs must still be met. The degree is only one piece of evidence.

How do I choose between NIW and EB-1A?

EB-1A requires showing you are already at the top of your field; NIW focuses on the significance of the proposed endeavor and your ability to advance it, but you must first meet EB-2 eligibility. The two may also have different wait times. See the EB-1A guide and the NIW guide.