Matter of Dhanasar: NIW Prongs, STEM, and Physician Waivers

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), is the precedent decision that governs every National Interest Waiver petition filed under the EB-2 employment-based immigrant visa category.¹ The Administrative Appeals Office issued it in 2016 to replace a stricter older standard, and it lays out the three-part test USCIS now uses to decide whether to waive the job offer and labor certification requirements that otherwise apply to EB-2 petitions. To win an NIW, you must show that your proposed endeavor has substantial merit and national importance, that you are well-positioned to advance it, and that, on balance, it benefits the United States to let you proceed without labor certification.

EB-2 Eligibility Comes First

Before USCIS applies the Dhanasar analysis, you have to independently qualify for the EB-2 classification. There are two routes. One is holding an advanced degree, defined by federal regulation as any academic or professional degree above a bachelor’s. A bachelor’s plus at least five years of progressive experience in the specialty counts as the equivalent of a master’s.²

The other route is demonstrating exceptional ability in the sciences, arts, or business by meeting at least three of seven regulatory criteria: a relevant degree, ten years of full-time experience, a professional license, a salary reflecting exceptional ability, professional association memberships, peer or industry recognition, or comparable evidence.³ Clearing this threshold does not entitle you to the waiver. It only puts you in position for the Dhanasar test.

What the waiver gets you, if granted, is significant. You do not need an employer to sponsor you, you do not need PERM labor certification through the Department of Labor, and you can file the I-140 petition on your own behalf.³ Self-petitioning is the practical prize the Dhanasar framework decides who gets.

Why the AAO Replaced the Old NYSDOT Test

Before 2016, NIW petitions were adjudicated under Matter of New York State Department of Transportation. That framework also had three requirements, but its third asked petitioners to prove they would serve the national interest to a substantially greater degree than an available U.S. worker with the same minimum qualifications. That forced a direct comparison against hypothetical American workers, which was hard to conceptualize and harder to document.

The AAO adopted Dhanasar for clarity.¹ Instead of asking whether you outperform other workers, the new test asks whether the benefit of your work outweighs the benefit of running you through the labor certification process. The comparison moved from you versus a hypothetical competitor to immediate approval versus PERM.

Prong One: Substantial Merit and National Importance

The first prong asks whether your proposed endeavor has both substantial merit and national importance.¹ These are two separate inquiries applied to the same work.

Substantial merit looks at the inherent value of what you propose to do. USCIS reads this broadly across science, technology, business, education, and the arts. A novel medical device, an energy-efficient manufacturing process, or a new software platform can all qualify. The work does not need to be revolutionary. It needs to carry genuine weight in its field.

National importance is where petitions often fail. The endeavor must have potential impact beyond your immediate workplace or local community. A researcher studying a disease affecting millions of Americans clears this bar more easily than someone proposing to open a single retail location. Dhanasar clarified that you do not need to show your work will benefit the entire country, only that its impact reaches beyond a narrow geographic scope. Endeavors touching public health, national security, education, or significant technological advancement tend to satisfy this element more readily.

One trap: do not confuse the importance of your industry with the importance of your specific endeavor. USCIS has said broad claims about your field’s value to the economy will not carry the day. The petition needs to explain what makes your particular project nationally significant.⁴

Prong Two: Well-Positioned to Advance the Endeavor

Establishing that the work matters is not enough. Under prong two, USCIS evaluates whether you personally are well-positioned to carry it out.¹ The agency looks at your education, skills, knowledge, and record of success in related efforts. It also considers whether you have developed a detailed plan and taken concrete steps toward advancing the endeavor, such as securing funding, building partnerships, or producing preliminary results. Evidence of interest from potential customers, investors, or collaborators strengthens this prong considerably.⁴

Your track record matters more than your resume. A list of credentials is less persuasive than concrete evidence that you have already succeeded at work similar to what you are proposing. Frequently cited research, a prior startup that gained traction, or technology that reached commercial use all speak directly to your likelihood of success. USCIS assesses this prong on the totality of the evidence, so a strong record can compensate for an unconventional educational background, and a strong educational background can compensate for a shorter track record.

Prong Three: The Balancing Test

The third prong asks whether, on balance, the United States would benefit more from waiving the job offer and labor certification requirements than from enforcing them.¹ Congress built PERM to protect American workers, and Dhanasar acknowledged that bypassing it requires justification. Prong three is where you provide it.

USCIS guidance identifies factors that carry weight here. If the nature of your work makes labor certification impractical, because you are self-employed, an entrepreneur, or hold knowledge so specialized that standard recruitment would be meaningless, that counts. Urgency counts too: if delaying your work through the months-long PERM process would cost the country a time-sensitive benefit, say so directly.³

A common misconception: showing that your occupation faces a national labor shortage does not, by itself, satisfy this prong. You still need to explain why your specific contributions benefit the country even if other qualified workers exist. Prong three is the discretionary heart of the NIW, and its outcome depends heavily on the strength of what you have already established under the first two prongs.

How Dhanasar Applies to STEM Applicants and Entrepreneurs

In January 2022, USCIS issued policy guidance clarifying how the Dhanasar framework applies to STEM graduates and entrepreneurs.⁵ The guidance did not change the three-prong test. It spelled out the evidence USCIS considers particularly relevant for these petitioners.

STEM Petitioners

USCIS treats a specific combination of facts as a strong positive factor under the balancing test: the petitioner holds an advanced STEM degree (especially a doctorate), will work in a critical and emerging technology or other STEM area important to U.S. competitiveness, and is well-positioned to advance a STEM endeavor of national importance.³ The benefit carries even more weight when the endeavor supports national security or economic competitiveness, or when the petition includes letters from interested U.S. government agencies.

Entrepreneurs

Not every entrepreneur qualifies. USCIS has stated plainly that broad claims about creating jobs or boosting the economy will not establish eligibility on their own. Founders need to show in detail how their specific venture satisfies the national interest requirement.⁴

For prong two in particular, entrepreneurs should document their ownership interest and central role in the U.S.-based entity, whether as founder or key officer. Outside investment from angel investors, venture capital firms, or similar sources gives USCIS independent validation of the endeavor’s merit. Admission into a recognized incubator or accelerator can serve as an endorsement of both the plan and the record. Government grants or awards from agencies with expertise in economic development, research, or job creation support both substantial merit and being well-positioned. Measurable progress, whether in market size, customer interest, or revenue, shows the business is gaining real traction rather than sitting on paper.

General work experience in a field does not automatically make you well-positioned to launch a consulting business in that field. USCIS wants to see how your specific record of achievement translates into a credible plan for this particular venture.⁴

The Evidence Standard and What Each Prong Demands

Dhanasar petitions are decided under a preponderance of the evidence standard, meaning you must show that your claims are more likely true than not. Every assertion should be supported by documentation. Vague promises about future contributions will not survive adjudication.

For prong one, ground the endeavor in specifics: detailed business plans or research proposals, market analyses showing the scope of the problem you address, published data on the societal or economic impact of your field, and any recognition your work has already received. Technical descriptions accessible to a non-specialist reviewer help when the endeavor involves technology.

For prong two, your track record is the foundation. Peer-reviewed publications, citation records, patents, product launches, revenue figures, signed contracts, and evidence of funding all speak to your capacity to deliver. Letters of recommendation from recognized experts carry weight only when they go beyond generic praise. The strongest letters explain specifically why your background makes you likely to succeed at this particular endeavor, not simply that you are a talented person in a good field.

For prong three, explain concretely why labor certification would be impractical or counterproductive in your situation. Self-employment or startup founding makes PERM fundamentally unsuitable because no traditional employer-employee relationship exists. If the work is time-sensitive, whether a research window is closing, a competitor abroad is advancing, or a public health need is urgent, document that timeline. Letters from U.S. government agencies expressing interest in your work are particularly valuable here.

Physicians in Shortage Areas: A Separate Statutory Waiver

Dhanasar does not govern every route to an NIW. The statute includes a separate provision for physicians who agree to work full time in areas the Department of Health and Human Services has designated as having a shortage of health care professionals, or at facilities under the Department of Veterans Affairs. For these physicians the Attorney General must grant the waiver, provided a federal agency or state public health department has previously determined the physician’s work in that area was in the public interest.⁶ No green card issues until the physician completes five years of full-time work in the designated area. Physicians pursuing this statutory path are not evaluated against the three Dhanasar prongs.

1
Justice.gov. Matter of DHANASA, 26 I&N Dec. 884 (AAO 2016)
2
eCFR. 8 CFR 204.5 – Petitions for Employment-Based Immigrants
3
USCIS. Employment-Based Immigration: Second Preference EB-2
4
USCIS Policy Manual. Chapter 5 – Advanced Degree or Exceptional Ability
5
U.S. Citizenship and Immigration Services. Policy Update: National Interest Waivers for Advanced Degree Professionals or Persons of Exceptional Ability
6
Office of the Law Revision Counsel. 8 USC 1153 – Allocation of Immigrant Visas