By Suzanne B Seltzer
The National Interest Waiver (NIW) has drawn increased attention in recent years. President Biden’s February 2, 2021, executive order to increase pathways to legal immigration[1] was followed by USCIS guidance to illustrate how the NIW could be used by STEM graduates and entrepreneurs.[2] This led to a dramatic surge in NIW submissions, from 873 in the fourth quarter of fiscal year (FY) 2022, to 9204 in second quarter of FY2023.[3] This surge was likely encouraged by the 98-99% approval rates at the end of FY2022, which rapidly declined to a 68% approval rate by the third quarter of FY2024. What was the reason for this dramatic decline? We can only speculate. Maybe USCIS was applying a more stringent standard, or maybe the submissions in this ten-fold increase were of questionable merit; maybe both. Certainly, the dramatic increase in submissions and subsequent dramatic decrease in approvals created a lot of confusion in the field about what qualifies for NIW.
For almost the last decade, the central framework for NIW adjudications is Matter of Dhanasar. [4] Matter of Dhanasar is a 2016 Administrative Appeals Office (AAO) decision that established the three-prong test for NIW eligibility. It was an overhaul of the previous framework, established in 1998 under Matter of New York State Department of Transportation (NYSDOT).[5] In Matter of Dhanasar, the AAO described some of the challenges posed by the NYSDOT standard and reframed the three-prong test to “one that will provide greater clarity, apply more flexibility to circumstances of both petitioning employer and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”[6] Its adoption not only marked a shift in legal interpretation, but also laid the groundwork for subsequent policy guidance and adjudicatory practices that remain in effect today.
Maintaining the Dhanasar framework as the central reference point is critical to ensuring consistency in adjudications, shielding outcomes from the whims of changing political administrations. Notably, even before President Trump took office—though after his election—USCIS issued updated guidance (PA-2025-03) that deemphasized a strict focus on STEM fields, clarified the criteria for second preference classification, and more clearly distinguished between the “intended position” and the “proposed endeavor.”[7] This article does not focus on the adjudicatory trends of particular administrations, but rather on the enduring structure provided by Dhanasar. Unless and until the standard is revised, Dhanasar remains the controlling framework and the most reliable basis for preparing successful NIW petitions, regardless of evolving policy priorities.
THRESHOLD REQUIREMENT: EB-2 Eligibility
The NIW is authorized under Section 203(b)(2) of the Immigration and Nationality Act (INA), which governs employment-based second preference (EB-2) petitions. As a threshold requirement, the applicant must first qualify as either an advanced-degree professional or an individual of exceptional ability before the NIW criteria can even be considered. Importantly, because the NIW falls exclusively under the EB-2 category, there is no option to “downgrade” to EB-3 in response to visa bulletin retrogressions or priority date delays.
Note that the attainment of an advanced degree does not necessarily mean that the foreign national qualifies as an “advanced degree professional.” Rather, as per the regulations, “Profession means one of the occupations listed in Section 101(a)(32) of the Immigration and Nationality Act (INA) as well as any occupation for which a baccalaureate or foreign equivalent is the minimum requirement for entry into the occupation.”[8] For example, if you are preparing an NIW for an orchestral conductor, you will need to demonstrate exceptional abilities even if the foreign national holds an advanced degree in the field because “conductor” (as the author learned the hard way) does not qualify as a profession.
In lieu of a profession, a foreign national may also qualify for the NIW if she can demonstrate that she is “an alien of exceptional ability.”[9] An alien of exceptional ability requires demonstrating that the foreign national meets at least three of the regulatory criteria, which are far less burdensome than those for the employment-based first (EB-1) preference categories. Nevertheless, exceptional ability is subject to the final merits analysis introduced by Kazarian v. USCIS, 596 F. 3D 1115, (9th Cir, 2010) and adopted by USCIS in “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005 (December 22, 2010) (PM-602-0005). Therefore, simply meeting three criteria is not necessarily sufficient, the three criteria must demonstrate that the foreign national has “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”[10]
Keep in mind that qualifying as an advanced-degree professional and/or an alien of exceptional ability is only the threshold requirement. The foreign national still must demonstrate that her immigration is in the national interest. Let’s address what that means.
IN THE NATIONAL INTEREST
Typically, qualification for the EB-2 immigrant visa category requires employer sponsorship and an approved labor certification (PERM) to demonstrate that no qualified U.S. workers are available for the position. However, the NIW provision allows these requirements to be waived if the applicant can demonstrate that their proposed endeavor will substantially benefit the United States. Crucially, neither the INA nor the implementing regulations define what it means for an endeavor to be “in the national interest.” The statutory language is sparse, stating only that “the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements … that an alien’s services … be sought by an employer.” This ambiguity has historically led to inconsistent adjudications and uncertainty for both petitioners and practitioners.
That is why a thorough understanding of Matter of Dhanasar, the controlling administrative precedent that clarified the NIW standard in 2016, is essential for any practitioner seeking to incorporate NIW filings into their practice. Dhanasar articulates a three-pronged test that has brought greater structure and a degree of predictability to NIW adjudications. Mastery of this framework is critical—not only to prepare strong, persuasive petitions, but also to navigate a category that is increasingly vital for professionals whose work may not follow traditional employer-sponsored routes but nonetheless serves the public interest.
Prong 1: The Proposed Endeavor is of Substantial Merit & National Importance
Defining the Proposed Endeavor
Whereas the previous framework for NIWs, Matter of New York State Department of Transportation (NYSDOT),[11] focused on the beneficiary’s “area of intended employment,” Matter of Dhanasar introduced a new concept, the “proposed endeavor.” According to Matter of Dhanasar, “the first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake.” However, nowhere in Dhanasar is the term “endeavor” explicitly defined, nor was there any guidance about what constitutes a “proposed endeavor.” In addition, there was confusion as to how the “endeavor” was different from the “intended employment.”
The recent policy guidance, PA-2025-03, attempts to distinguish between the “intended occupation” and the “proposed endeavor,” explaining that “the intended occupation is the one through which the person plans to advance the proposed endeavor, and the proposed endeavor is more specific than the general occupation.”[12] In other words, these are two related but different concepts, where the proposed endeavor is a clearly defined, narrower activity within the broader field, and the occupation must support or enable the specific endeavor. For example, where the intended employment is Assistant Professor of Ophthalmology, the proposed endeavor may be to develop artificial intelligence (AI) tools that automate both ophthalmological imaging and different aspects of clinical workflow; or where the intended employment is credit management and the proposed endeavor is to improve the management of healthcare debt.
However, even with the recent policy guidance, the distinction between the intended occupation and the proposed endeavor can be tricky in application. Turning to the plain language of the term, the online Oxford Dictionary defines “endeavor” as an “attempt to achieve a goal.” Substituting the term “goal” for “endeavor” fits within the rubric of the Dhanasar test without changing its meaning, to wit:
- The proposed “goal” has both substantial merit and national importance;
- The beneficiary is well-positioned to advance the proposed “goal”; and
- It would be beneficial to the United States to waive the requirements of a job offer and of a labor certification.
Following this logic, the “proposed endeavor” is a description of the work the beneficiary intends to do to achieve a specific goal. This is consistent with the new policy guidance, which confirms that “the explanation of the proposed endeavor should describe the specific project and goals” (emphasis added).[13] It is from the direct impacts, or the “potential prospective impact” of the endeavor that we examine whether it has “substantial merit and national importance.”
Substantial Merit & National Importance
According to Matter of Dhanasar, “the endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health or education.” [14] While it recognizes that “evidence that the endeavor has the potential to create a significant economic impact may be favorable” it clearly holds that it “is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact.”[15] It also finds that “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments of those fields are likely to translate into economic benefits.”[16] The broad definition of substantial merit means that this prong is relatively easy to satisfy. However, this is only one half of the second prong; establishing the second half, national importance, requires a separate and more rigorous showing of broader implications, which Dhanasar frames as “potential prospective impact.”
When examining the “national importance” part of the prong, it is essential to distinguish between the job title listed on Form I-140 and the beneficiary’s actual proposed endeavor. USCIS frequently conflates the two, issuing RFEs when the job title does not align with its implicit assumptions about which roles merit an NIW. For example, positions focused primarily on teaching or clinical care may be viewed skeptically, as USCIS is reluctant to recognize such roles as serving the national interest—despite the broader impact such work may have. This tendency is rooted, in part, in the following language from Matter of Dhanasar:
T]he petitioner proposes to support teaching activities in science, technology, engineering, and math (“STEM”) disciplines… While STEM teaching has substantial merit in relation to U.S. educational interests, the record does not indicate by a preponderance of the evidence that the petitioner would be engaged in activities that would impact the field of STEM education more broadly. Accordingly, as the petitioner has not established by a preponderance of the evidence that his proposed teaching activities meet the “national importance” element of the first prong of the new framework, we do not address the remaining prongs in relation to the petitioner’s teaching activities.[17]
Dhanasar reinforces this point by emphasizing that, “[i]n determining whether the proposed endeavor has national importance, we consider its potential prospective impact…We look for broader implications.” In practice, this often leads to split decisions in RFEs—acknowledging that an endeavor has substantial merit but questioning its national importance, particularly when the role involves teaching or clinical care. While we may argue the significance of an outstanding teacher or clinician, such cases remain challenging under Dhanasar.
PA-2025-03 provides further clarification on what does not meet the threshold for national interest under the NIW standard. For example, simply proposing to work in an occupation facing a national labor shortage is not sufficient on its own. The guidance also cautions that benefits limited to a single employer—even one with a national presence—do not, by themselves, establish that an endeavor has national importance. Rather, the national importance of the beneficiary’s proposed endeavor must demonstrate the broader implications. To illustrate this distinction, the guidance explains that a person developing a new drug may qualify if they can demonstrate the drug’s potential public health impact, rather than merely projecting the profits it will generate for their employer. This underscores USCIS’ focus on who benefits from the proposed endeavor, placing greater weight on outcomes that serve the broader public or field, rather than those that primarily benefit a single organization.[18]
Unfortunately, neither Dhanasar nor PA-2025-03 offer much guidance on the types of evidence that would demonstrate “potential prospective impact” and “broader implications.” Both simply assert that national importance is not “solely in geographic terms” and that “an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects…may well be understood to have national importance.”[19] This is limited guidance, especially given that it also recognizes an endeavor’s merit may be established without immediate or quantifiable economic impact. However, review of decisions by the Administrative Appeals Office (AAO) may provide useful information. Numerous AAO decisions that hold that “broader implications” are established where the beneficiary’s “results are disseminated to others in the field through … journals and conferences.” Matter of S-A-K (June 5, 2018) at 4; see also Matter of S-B- (August 8, 2018) at 4; Matter of R-M-T- (March 30, 2018) at 5; Matter of O-F-O (June 20, 2018) at 4; Matter of D-I-R (August 7, 2018) at 4; and Matter of A-D- (May 19, 2017) at 4. However, the mere fact of publishing may not be sufficient where the articles are co-authored and there are limited citations.[20] Mining these decisions, while time-consuming, will certainly shed light on documenting “broader implications.”
Prong Two: Beneficiary is Well-Positioned to Advance 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, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts . . . plan for future activities . . . progress towards achieving the proposed endeavor.”[21] PA-2025-03 suggests including “evidence to document the person’s past achievements, explain how those achievements relate to the proposed endeavor or provide evidence of progress towards achieving the endeavor.”[22] Both Dhanasar and PA-2025-03 recognized that “A person may be well-positioned to advance the endeavor even if the person cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed.”[23] This is a critical clarification, as it underscores that the national interest waiver is forward-looking and focused on potential impact—not guaranteed outcomes. Requiring certainty of success would create an unreasonably high bar, especially for innovative or research-based work where the societal value lies in exploration, progress, and dissemination, even if the final results remain uncertain.
In Dhanasar, the AAO noted several factors that demonstrated that the beneficiary was “well-positioned to advance the endeavor.” This included “multiple graduate degrees in relevant fields…experience conducting research and developing computational models that support the United States Department of Defense …detailed expert letters describing U.S. government interest and investment in his research…documentation that petitioner played a significant role in projects funded by grants from [government agencies].” [24] Other AAO decisions indicate that it is not enough to add to the pool of knowledge. Rather, there must be progress towards achieving the goals, a record of success in similar efforts, or generation of interest among relevant parties. For example, where a surgeon claimed to have developed new techniques but did not identify any surgical centers that have adopted the technique (nor evidence that he actually developed it), he could not be said to be “well-positioned to advance the proposed endeavor,” even though he published and presented research during his medical career. In that case, the AAO found that if “petitioner has not shown that his plastic surgery research has been frequently cited… otherwise served as an impetus for progress in the field… or generated substantial positive discourse, it does not constitute a record of success in his area of research.”[25]
AAO decisions also indicate that being well-positioned means being well-positioned at the time of initial filing. For example, having experience as a multicultural educator and a plan to improve student retention rates for culturally diverse populations was not sufficient to be “well-positioned to advance the endeavor.”[26] The fact that beneficiary’s work was published after the NIW was filed precluded it from consideration.[27] In addition, being listed as a researcher in study protocols, without further details of the beneficiary’s specific role, failed to satisfy the “well-positioned” prong.[28]
Taken together, Dhanasar, PA-2025-03, and AAO decisions make clear that the second prong hinges not on speculative future potential, but on whether the petitioner can demonstrate—at the time of filing—a credible and evidence-based foundation for advancing the proposed endeavor. While the standard does not require proof of guaranteed success, it does require more than general qualifications or routine participation in research or professional activities. Petitioners must show a clear link between their past achievements and future plans, supported by tangible indicators such as prior impact, government or institutional support, expert recognition, or documented progress. The inquiry is not simply whether the individual is competent, but whether they are distinctively well-suited to carry out the specific proposed endeavor in a way that is likely to result in meaningful advancement. As the AAO has repeatedly emphasized, generalized experience or aspirations—without corroborating detail or evidence of influence—will not suffice.
Prong Three: On Balance, Beneficial to U.S. to Waive Job Offer & Labor Certification
The third prong of Dhanasar 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… [B]y creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification can be outweighed by other factors that are also deemed to be in the national interest.[29]
To persuasively argue for an NIW, it is important to understand what is being waived; namely, the PERM labor certification process. At its core, PERM is designed to protect U.S. workers by requiring employers to prove that no qualified American workers are available for a specific job. However, the regulatory framework that governs this process is highly rigid and often incompatible with the dynamic, interdisciplinary, or forward-looking nature of work that typically qualifies for an NIW. Specifically, the process requires a permanent job offer, where the job requirements must reflect what is customarily required for the occupation and cannot be tailored to the unique qualifications of the foreign national.[30] Employers are restricted to stating the actual minimum requirements for the position, which must conform to the standardized classifications in the Department of Labor’s (DOL) Standard Occupational Classification (SOC) system and O*NET. [31] Any attempt to go beyond these requirements must be justified through a documented “business necessity,” and all criteria must be quantifiable—such as “two years of experience” or “proof of licensure.” Subjective descriptors like “excellent” are expressly disallowed under Board of Alien Labor Certification Appeals (BALCA) precedent.[32] Without this foundational knowledge of the PERM process, it may be difficult to convincingly argue that the waiver is warranted.
Dhanasar outlines three pathways for demonstrating that a waiver of the job offer and of the labor certification requirements is in the national interest. It notes that USCIS may consider such factors as:
- Whether, given the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical to secure a labor certification;
- Whether the United States would still benefit from the foreign national’s contributions even if other qualified U.S. workers are available; and/or
- Whether the national interest in the foreign national’s work is sufficiently urgent to justify bypassing the labor certification process.[33]
In terms of “impractical to secure a labor certification”, one important category involves individuals who are self-employed or serve in an ownership or executive capacity within their own business. In such cases, the DOL requires a clear showing that a bona fide job opportunity exists—meaning the position must be open to qualified U.S. workers and not merely created for the purpose of sponsoring the foreign national.[34] Demonstrating this is particularly challenging when the individual holds decision-making authority, financial interest, or control over hiring and employment conditions, which effectively undermines the ability to establish an arm’s-length employer-employee relationship. As a result, labor certification is often deemed impractical in self-employment or entrepreneurial contexts due to the structural inability to satisfy these regulatory requirements.
Furthermore, even when a foreign national has a job offer or is currently employed, the employer may not be willing—or able—to initiate and support the PERM process. Sponsorship requires a significant investment of time, financial resources, and legal compliance on the part of the employer, including conducting a formal recruitment process to test the U.S. labor market. Many employers, particularly smaller organizations, may be unwilling to undergo this process or may lack the institutional capacity to do so. Therefore, the existence of employment alone does not necessarily mean that labor certification is a viable option.
Importantly, Dhanasar did not restrict NIW eligibility to those for whom a labor certification was impractical; rather, it established that the benefits inherent in a labor certification may simply be outweighed by other factors that are deemed to be in the national interest.[35] In Dhanasar, those factors included “three graduate degrees in fields tied to the proposed endeavor…considerable experience and expertise in a highly specialized field…research on hypersonic propulsion holds significant implications for U.S. national security and competitiveness…the repeated funding of research in which petitioner played a key role indicates that government agencies have found his work on this topic to be promising and useful.” [36] Ultimately, the AAO held that “because of his record of successful research in an area that furthers U.S. interests, we find that this petitioner offers contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available.”[37] Dhanasar underscores that an NIW may still be justified when the beneficiary offers unique expertise, a proven record of impactful contributions, or the capacity to advance work of national importance.
Nor should the approval of a PERM labor certification be a barrier to NIW eligibility. Even if a PERM has already been certified, an NIW may still be appropriate—particularly where the foreign national’s proposed endeavor cannot be effectively carried out within the limitations of the certified position. In other words, a PERM may define a narrow set of duties tied to a specific employer and occupation, such as “treating patients in a clinical setting,” “conducting internal software development,” or “teaching undergraduate economics.” However, the foreign national’s proposed endeavor may involve broader, nationally significant work that cannot be effectively pursued within the confines of the certified role. For example, a physician limited by PERM to direct clinical care may be conducting large-scale outcomes research aimed at developing national treatment guidelines for heart disease, the leading cause of death in the United States. A software engineer certified for internal development may instead be working on open-source AI tools to secure critical infrastructure, aligning with urgent national cybersecurity priorities. Similarly, an economist whose PERM role involves classroom instruction may be advising federal agencies on policy solutions for economically distressed regions. In each of these cases, the proposed work addresses time-sensitive public health, security, or economic challenges, making the contributions “sufficiently urgent”[38] to justify waiving the labor certification requirement.
Sufficient urgency may also arise in the context of prolonged visa backlogs, particularly for individuals from oversubscribed countries who must remain in a single, narrowly defined role for many years to retain eligibility under the traditional EB-2 process. During this extended period, their ability to contribute to the public interest—through research, innovation, policy work, or other nationally significant endeavors—can be severely constrained by the fixed terms of their certified position. In such cases, the National Interest Waiver offers a critical alternative, allowing the United States to benefit from their expertise without being bound by the rigidities of the labor certification process. This ensures that pressing national needs are not unmet simply because the traditional system cannot accommodate the nature or urgency of their contributions.
Ultimately, the NIW exists precisely to address situations where the rigidity of the labor certification framework would prevent the full realization of contributions that serve the national welfare. A certified PERM should therefore not disqualify a petitioner from consideration under the NIW framework; rather, it should prompt a closer analysis of whether the individual’s prospective impact would be better achieved through the flexibility the NIW affords.
CONCLUSION
With fluctuating approval rates and shifting policy signals, it is more important than ever for practitioners to return to the fundamentals. Matter of Dhanasar remains the governing standard for NIW adjudications and provides a flexible, forward-looking framework capable of accommodating a wide range of petitioners—from STEM graduates and entrepreneurs to public health researchers and policy experts. While external factors may influence adjudication trends, Dhanasar offers a consistent legal foundation that transcends these fluctuations. Without a solid grasp of its three-pronged test and the reasoning behind it, a practitioner cannot effectively frame the petitioner’s qualifications or proposed endeavor in terms that align with USCIS expectations.
Equally important is understanding the structure and limitations of labor certification. Since the third prong of Dhanasar asks adjudicators to weigh whether the national interest justifies waiving the job offer and labor certification requirements, practitioners must be able to articulate what those requirements are, why they may be impractical or constraining, and how waiving them would serve the public good. Mastery of both Dhanasar and the labor certification framework is essential for building a compelling, credible, and ultimately successful NIW petition.
Finally, it may be helpful to review AAO decisions, which provide interpretive guidance on how Dhanasar is applied in practice. These decisions illuminate how USCIS evaluates the national interest, what kinds of evidence are persuasive, and how petitioners in a range of fields have successfully (or unsuccessfully) met the standard. Together, Dhanasar, the labor certification regulations, and AAO precedent form the core legal and practical foundation for a strong NIW petition. Without command of all three, a practitioner risks misframing the case and undermining the petition’s success.
Copyright © 2025 by The Seltzer Firm, PLLC. All rights reserved. Sections of this article were adapted from “Tackling O-1, EB-1, and NIW RFEs/NOIDs: Making the Law Your Friend, Not Your Frenemy,” co-authored by Rita Sostrin.
[1] DCPD-202100111 – Executive Order 14012-Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans (February 2, 2021)
[2] USCIS Policy Alert, National Interest Waivers for Advanced Degree Professionals or Persons of Exceptional ability, January 21, 2022, amended 6 USCIS-PM F.5 – Chapter 5 Advanced Degree Professional or Exceptional Ability
[3] STEM-Related Petition Trends: EB-2 and O-1A Categories FY2018 – FY2023, available at USCIS.gov
[4] Matter of Dhanasar, 26 I & N Dec. 884 (AAO 2016).
[5] Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).
[6] Dhanasar at 888.
[7] [7] USCIS Policy Alert, Second Preference Eligibility for National Interest Waiver Petitions (PA-2025-03, January 15, 2025).
[8] 8 CFR §204.5(k)(2).
[9] 8 CFR §204.5(k)(3)(ii).
[10] 8 CFR §204.5(k)(2).
[11] 22 I&N Dec 215 (Assoc. Comm’r 1998).
[12] Op cit at fn7, p11.
[13] Op cit fn 7, p12
[14] Dhanasar at 889
[15] Id.
[16] Id.
[17] Dhanasar at 893 (emphasis added).
[18] Op Cit fn 7, p13
[19] Dhanasar at 890
[20] In re: 37288422, AAO Decision dated March 7, 2025.
[21] Dhanasar at 890.
[22] Op Cit fn7, p14.
[23] Dhanasar at 890; Op Cit fn 7, 14.
[24] Dhanasar at 892-3
[25] Matter of H–C–C– (AAO July 26, 2017); see also Matter of A–D– (AAO May 19, 2017).
[26] Matter of N–K– (AAO Apr. 14, 2017).
[27] Id.
[28] Matter of C–W–K– (AAO June 13, 2017).
[29] Dhanasar at 890.
[30] www.foreignlaborcert.doleta.gov/perm_detail.cfm.
[31] 20 CFR §656.17(i)(1).
[32] Michael Graves Architect, 89-INA-131, 1989 (BALCA, Feb. 21, 1990).
[33] Dhanasar at 890-891.
[34] 20 CFR §656.10(c)(8).
[35] Dhanasar at 890.
[36] Dhanasar at 893.
[37] Id.
[38] Id.