White Paper · Employment Immigration

The EB-2 National Interest Waiver: Dhanasar, the 2025 Guidance, and How Officers Decide

The waiver allows a green card petition without an employer or labor certification. The law did not change in 2025. The level of scrutiny did.

By Lincoln Square Law · 10-minute read

The national interest waiver is the one route to an employment-based green card that does not require an employer. A qualified professional can file Form I-140 on his or her own behalf, skip the Department of Labor’s certification process, and ask USCIS to agree that the United States is better served by waiving the job offer than by enforcing it. The route is attractive for researchers, founders, physicians, and specialists, and petition volume has grown accordingly. So has scrutiny. This paper explains the statutory structure, the three-part test the agency applies, the January 2025 guidance that sharpened each part, and the evidentiary climate that petitions face in late 2026.

Two questions, asked in order

The waiver is available only inside the second employment-based preference, known as EB-2 (INA 203(b)(2)). The statute allows the government to waive the requirement that the petitioner’s services be sought by a U.S. employer when doing so is in the national interest (INA 203(b)(2)(B)(i)). The waiver removes the job offer. It does not remove the category. A petitioner must first qualify for EB-2 on its own terms, and USCIS guidance issued on January 15, 2025 (Policy Alert PA-2025-03) directs officers to decide that question before reaching the waiver at all.

There are two ways into EB-2. The first is as a member of the professions holding an advanced degree, meaning a U.S. master’s degree or foreign equivalent, or a bachelor’s degree followed by at least five years of progressive post-baccalaureate experience in the specialty (8 C.F.R. 204.5(k)(2)). The second is as a person of exceptional ability in the sciences, arts, or business, shown by at least three of six regulatory criteria, such as a relevant degree, ten years of full-time experience, a license, a salary demonstrating ability, association memberships, or recognition for achievements (8 C.F.R. 204.5(k)(3)(ii)).

The 2025 guidance adds a point that catches petitioners with strong credentials. For the advanced degree route, the intended occupation must itself be a profession, one that requires at least a bachelor’s degree for entry (INA 101(a)(32)). The guidance uses the example of a highly educated engineer who proposes to open a bakery. The engineer’s degrees do not help, because the occupation of baker does not normally require a degree. Petitioners who plan to change fields after immigrating should expect the threshold question to be tested against the new work, not the old résumé.

From NYSDOT to Dhanasar

For nearly two decades the waiver was governed by Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm’r 1998). That test required a showing that the benefit would be national in scope and that the petitioner would serve the national interest to a substantially greater degree than an available U.S. worker with the same minimum qualifications. The comparison to hypothetical U.S. workers proved hard to apply and harder to prove, and it fit poorly with entrepreneurs and people in early-stage research.

In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office vacated that framework and adopted the test in use today. The petitioner, an engineer proposing research on air and space propulsion systems, won the waiver under the new standard. Dhanasar is a designated precedent decision, which binds USCIS officers in every case (8 C.F.R. 103.3(c)).

Prong one: substantial merit and national importance

The first prong looks at the proposed endeavor, not the person. Merit may arise in business, science, technology, culture, health, or education, and the endeavor need not produce immediate economic gain. National importance turns on the endeavor’s potential prospective impact. Dhanasar made clear that a local or regional focus does not defeat national importance if the work has broader implications, such as influence on a field or a significant economic effect in an economically depressed area.

The 2025 guidance tightened how this prong is read. The endeavor must be described specifically enough to evaluate, and it is distinct from the occupation. “Engineer” is an occupation. Research and development on a particular propulsion technology is an endeavor. Officers are directed to assess the impact of the specific endeavor rather than the importance of the field in which it sits, so evidence that artificial intelligence or cancer research matters to the country does not show that a particular petitioner’s project does. The guidance also gives the example that classroom teaching, without broader implications for a field or region, generally does not rise to national importance.

Prong two: well positioned to advance the endeavor

The second prong turns to the petitioner. Dhanasar lists the factors that bear on it. They include the petitioner’s education, skills, and knowledge, a record of success in related or similar efforts, a model or plan for future activity, progress toward achieving the endeavor, and the interest of potential customers, users, investors, or other relevant parties. The decision expressly does not require proof that the endeavor is more likely than not to succeed. It requires a credible showing that this person is positioned to carry it forward.

The guidance places weight on documentary evidence of achievement, such as publications and their use by others, patents that have been licensed or implemented, grants and funding, contracts, and letters from government or quasi-governmental bodies with relevant expertise. For entrepreneurs, it recognizes investment, customer adoption, and market validation even before revenue is significant. It also warns that not every entrepreneur qualifies, that ownership of a company rarely establishes eligibility on its own, and that broad claims about economic growth and job creation do not substitute for specific evidence.

Prong three: why waive the job offer

The third prong asks whether, on balance, it would benefit the United States to waive the job offer and the labor certification that comes with it. Dhanasar identifies considerations that may support a waiver: that labor certification would be impractical given the petitioner’s qualifications or the nature of the work, that the country would benefit from the petitioner’s contributions even if qualified U.S. workers were available, and that the national interest in the contributions is urgent enough to justify forgoing the labor market test. Self-employed founders and researchers whose work does not map onto a single employer’s job requirements often fit the first consideration.

The 2025 guidance adds two points. A national labor shortage in the petitioner’s occupation does not, by itself, satisfy this prong. And for petitioners in science, technology, engineering, and mathematics, an advanced STEM degree, particularly a doctorate, combined with work in a critical or emerging technology or another area important to U.S. competitiveness, is treated as a strong positive factor. Positive factors are weighed. They are not automatic approvals.

Standard of proof and the 2026 climate

The petitioner must establish eligibility by a preponderance of the evidence, meaning that each element is more likely true than not (Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). Officers may give less weight to expert opinion that is conclusory or inconsistent with other evidence in the record (Matter of Caron International, 19 I&N Dec. 791 (Comm’r 1988)).

The statute and the precedent have not changed since 2016. What has changed is how closely the record is read. The January 2025 guidance directs officers to test each prong against specific documentary evidence, and a second policy change affects what happens when the record falls short. On August 5, 2026, USCIS issued Policy Alert PA-2026-05, restoring officer discretion to deny a filing without first issuing a request for evidence when required initial evidence is missing or the submitted evidence does not establish eligibility. The same guidance makes twelve weeks the maximum response period for a request for evidence rather than the standard, allows officers to set shorter periods, keeps thirty days as the maximum for a notice of intent to deny, and ends the additional fourteen days previously allowed for responses mailed from abroad. For NIW petitions, which rely heavily on letters and narrative, this means the initial filing must be complete and documented. A petition drafted on the assumption that gaps can be filled later may not get the chance.

After the petition is approved

An approved I-140 establishes the classification. It does not itself confer permanent residence. The filing date of the I-140 becomes the petitioner’s priority date, and a green card can be issued only when that date is current under the State Department’s monthly Visa Bulletin. In the September 2026 bulletin, the EB-2 final action date was current for most countries of chargeability, China had a cutoff date in 2021, and the category was unavailable for India. The State Department warned that EB-2 might retrogress or become unavailable before the fiscal year ended on September 30. Annual limits reset on October 1, so the chart should be checked each month rather than assumed.

A petitioner in the United States in lawful status may file for adjustment of status once a visa number is available, and where the dates permit, the I-485 can be filed together with the I-140. Petitioners abroad proceed through consular processing. Premium processing, where USCIS offers it for the classification (8 C.F.R. 106.4), shortens the time to a decision on the I-140. It does not shorten the wait for a visa number, and it does not relax the evidence required.

Deciding whether to file

An NIW is worth pursuing when three things are true at once: the petitioner plainly meets EB-2, the endeavor can be defined precisely and connected to impact beyond the petitioner’s own employer, and the record already contains documentary proof of the petitioner’s progress. When one of those is missing, the better course may be to wait and build the record, to consider an employer-sponsored petition with labor certification, or to evaluate the EB-1 categories if the record shows sustained acclaim. The decision is strategic as much as legal, and it is easier to make before the filing than after a denial.