Navigating the Dhanasar National Interest Waiver Requirements: A Comprehensive Guide

In this guide we will discuss the revised National Interest Waiver requirements which make the test more flexible but also somewhat more definable in the immigration landscape.

Section 203(b)(2)(A) of the INA states, in part, that visas shall be made available to qualified
immigrants who are members of the professions holding advanced degrees or their equivalent, or who, because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States and whose services in the sciences, arts, professions, or business are sought by a U.S. employer.

However, under Section 203(b)(2)(B) of the INA, the Secretary of Homeland Security may, when the Secretary deems it to be in the national interest, waive the requirement that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

The USCIS previously relied on the framework established in the Matter of New York State Department of Transportation (NYSDOT) to evaluate national interest waiver (NIW) petitions. This framework required demonstrating that the area of employment was of substantial intrinsic merit, that the proposed benefit would be national in scope, and that the national interest would be adversely affected if a labor certification were required. However, this framework often proved problematic. The “influence” standard, which became a primary measure, was not always the best predictor of future success. Additionally, it sometimes implied the need for a labor market test, which the waiver is supposed to bypass, and was particularly difficult for self-employed individuals like entrepreneurs to navigate.

To address these issues, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) introduced a revised three-pronged test. First, the petitioner’s proposed endeavor must have substantial merit and national importance in fields such as business, science, technology, culture, health, or education. National importance is assessed by potential broad implications rather than just geographic scope. Second, the petitioner must be well-positioned to advance the proposed endeavor, considering factors such as education, skills, knowledge, record of success, and plans for future activities. Evidence of progress and interest from potential stakeholders also supports this criterion. Third, the petitioner must demonstrate that, on balance, waiving the job offer and labor certification requirements would be beneficial to the United States. Factors considered include the impracticality of securing a job offer due to unique skills, the national interest in the petitioner’s contributions, and the urgency of the need for those contributions.

Let us now dive into the details of Dhanasar and quotes directly from this decision to better understand the National Interest Waiver requirements petitioners now face when filing their petitions with USCIS.

After the petitioner has established a beneficiary’s eligibility for second preference classification under section 203(b)(2)(A) of the INA, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence that: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (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. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Excerpt out of a USCIS Decision

NIW Test (Dhanasar), Prong I:

(1) the foreign national’s proposed endeavor has both substantial merit and national importance;

The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. To establish that an endeavor has substantial merit, the petitioner should provide a detailed description of the endeavor and why it is meritorious. In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact.

For example, endeavors related to research, pure science, and the
furtherance of human knowledge may qualify, whether or not the potential
accomplishments in those fields are likely to translate into economic
benefits for the United States.
In determining whether the proposed endeavor has national importance,
we consider its potential prospective impact. An undertaking may have
national importance for example, because it has national or even global
implications within a particular field, such as those resulting from certain
improved manufacturing processes or medical advances. But we do not
evaluate prospective impact solely in geographic terms. Instead, we look
for broader implications. Even ventures and undertakings that have as their
focus one geographic area of the United States may properly be considered
to have national importance.


In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other
substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

NIW Test (Dhanasar), Prong II:

(2) the foreign national is well positioned to advance the proposed endeavor;

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, USCIS considers factors including, but not limited to: 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 or individuals.

We recognize that forecasting feasibility or future success may present
challenges to petitioners and USCIS officers, and that many innovations
and entrepreneurial endeavors may ultimately fail, in whole or in part,
despite an intelligent plan and competent execution. We do not, therefore,
require petitioners to demonstrate that their endeavors are more likely than
not to ultimately succeed. But notwithstanding this inherent uncertainty, in
order to merit a national interest waiver, petitioners must establish, by a
preponderance of the evidence, that they are well positioned to advance the
proposed endeavor.

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

NIW Test (Dhanasar), Prong III:

(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.

The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or the proposed 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 the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.


In performing this analysis, USCIS may evaluate factors such as:
whether, in light of the nature of the foreign national’s qualifications or
proposed endeavor, it would be impractical either for the foreign national to
secure a job offer or for the petitioner to obtain a labor certification;10

10 For example, the labor certification process may prevent a petitioning employer from
hiring a foreign national with unique knowledge or skills that are not easily articulated in
a labor certification. See generally 20 C.F.R. § 656.17(i). Likewise, because of the
nature of the proposed endeavor, it may be impractical for an entrepreneur or
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 the foreign national’s contributions is
sufficiently urgent to warrant forgoing the labor certification process. We
emphasize that, in each case, the factor(s) considered must, taken together,
indicate that on balance, it would be beneficial to the United States to waive
the requirements of a job offer and thus of a labor certification.
We note that this new prong, unlike the third prong of NYSDOT, does
not require a showing of harm to the national interest or a comparison
against U.S. workers in the petitioner’s field. As stated previously,
NYSDOT’s third prong was especially problematic for certain petitioners,
such as entrepreneurs and self-employed individuals. This more flexible
test, which can be met in a range of ways as described above, is meant to
apply to a greater variety of individuals.

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

In conclusion, the revised NIW framework under Matter of Dhanasar provides clearer, more flexible criteria better suited to diverse cases, particularly those involving self-employed individuals or entrepreneurs. This new approach ensures that the evaluation process aligns more closely with the broad discretionary waiver provision intended to benefit the United States. However, given the new-found flexibility of NIW adjudication, it also appears to provide USCIS with broad discretion in deciding these cases. Petitioners should ensure that all aspects of their case are logically presented and thoroughly substantiated to justify the grant of a national interest waiver.

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