Eligibility Overview for EB-2 National Interest Waiver: Framework Under Matter of Dhanasar

The Second-Preference Employment-Based (EB-2) National Interest Waiver (NIW) stands as a unique pathway to permanent residency in the U.S. for professionals with advanced degrees or exceptional abilities who seek to contribute significantly to their field of work.

Normally, EB-2 applicants must have a job offer and go through a time-consuming and intensive process known as the PERM labor certification with the U.S. Department of Labor. The labor certification requires an employer to test the U.S. labor market and document that there are no able, willing, and qualified U.S. workers to fill the position. The NIW waives this job offer and labor certification requirement, allowing applicants to self-petition for their immigrant visa. 

First, to qualify for the EB-2 category, applicants need to show that they either:

• Have an advanced degree (Master's degree or higher) or its equivalent (Bachelor's Degree and 5 years of experience); or
• Have exceptional ability in their field.

Next, applicants have to show that they qualify for the NIW by meeting the three criteria or “prongs” as outlined in the precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

Three-Part Test:

1. The proposed endeavor has both substantial merit and national importance.
2. The applicant is well-positioned to advance the proposed endeavor.
3. On balance, it would be beneficial to the United States to waive the job offer and thus the labor certification requirements.

The Matter of Dhanasar decision established a new analytical framework for evaluating NIW applications, vacating the prior structure from Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The new three-prong test looks at the facts holistically: Reviewing the field of work (prong 1), reviewing the foreign national applicant (prong 2), and reviewing the national interest (prong 3). The criteria expanded the grounds of eligibility and made NIWs more broadly available to foreign nationals pursuing endeavors that would benefit the U.S., including entrepreneurs and self-employed individuals.