EB-2 NIW in 2024: Approvals, RFEs, and What It Means for 2026

The USCIS numbers on the EB-2 with National Interest Waiver for fiscal year 2024 made one thing clear: the bar got higher. There were 63,549 petitions received, 27,526 approvals, 11,256 denials, and 44,093 cases pending at the end of the fiscal year, according to the agency’s own quarterly release. For anyone planning to petition in 2026, reading these numbers isn’t just a statistics exercise — it’s a map of where adjudicators are pushing back and where petitions need to be strengthened.

The 2024 Numbers at a Glance

The snapshot of fiscal year 2024, which ended September 30 of that year, reveals three simultaneous trends. The first is the absolute increase in the number of petitions filed, reflecting the category’s boom since the January 2022 policy guidance that reorganized the Matter of Dhanasar framework for STEM professionals and entrepreneurs. The second is the sharp rise in pending cases, which jumped from 22,756 at the end of the first quarter to 44,093 at the end of the fourth — nearly double in nine months. The third is an approval rate that settled at 43%, well below the levels seen in previous cycles, when the category hovered around 80% deferral.

The combined effect of these three trends has one practical takeaway: RFEs (Requests for Evidence) are now the rule, not the exception. Petitions that might have been approved outright three years ago now receive detailed evidence requests, especially regarding Dhanasar’s second prong — that the petitioner is well positioned to advance the proposed endeavor.

The Breakdown by Country of Birth

The USCIS release breaks down the numbers by petitioner’s country of birth, and the results are striking for those based in Brazil. China leads in volume with 3,644 petitions received and a 37% approval rate. India follows with 2,501 petitions and a 30% approval rate. Brazil comes in third by volume, with 2,003 petitions, but with an approval rate of just 15% — less than half of China’s performance. Nigeria and Iran reached 32% and 35% respectively.

The Brazilian gap doesn’t have a simple demographic explanation. There is no provision in the law that distinguishes nationalities for EB-2 NIW purposes. The discrepancy lies almost certainly in the product being submitted: Brazilian petitions tend to be built around a strong résumé, but fail to clearly articulate why the petitioner’s specific work is of substantial national interest to the United States. The adjudicator doesn’t deny based on weak academic merit; they deny because the proposed endeavor was not persuasively connected to a concrete national need.

Where Petitions Fail: State Patterns

The breakdown by state also reveals clear patterns. California leads with 2,864 petitions and a 27% approval rate. Texas has 2,059 petitions and 32%. New York, surprisingly, dropped to just 16% approval across 2,054 petitions. Florida closed at 23%. The group classified as Unknown — generally petitioners residing outside the U.S. who go through consular processing — totaled 2,696 petitions with a 20% approval rate.

New York’s low performance has no obvious cause in the data, but is often attributed to a combination of high-volume standardized petitions and a submission culture that prioritizes speed over customization. The data serves as a warning: success depends less on where an attorney’s office is located and more on the documentary quality of the individual petition.

What Changed in the Fee Schedule

Anyone planning to petition in 2026 needs to update their budget. The Final Rule on fees published by USCIS in April 2024 repositioned costs for the category. Form I-140, the NIW petition instrument, now costs $715. Premium Processing for the I-140, when available, was updated to $2,805, with a 45-calendar-day response window. The Asylum Program Fee, created by the same rule, does not apply to the I-140 when the petitioner is the foreign national themselves — a structural advantage of the NIW over employer-sponsored categories.

For those adjusting status through Form I-485 within the United States, the standard package runs around $1,440 per adult applicant, with Form I-765 (EAD) and I-131 (Advance Parole) billed separately when filed after the rule’s publication. Dependent family members — spouse and unmarried children under 21 — fall under the E-22 and E-23 classifications, with their own separate fees.

Visa Bulletin: The Line Behind the Number

The annual cap for the EB-2 preference category is approximately 40,040 visas per fiscal year, before spillover from unused EB-1 numbers. The State Department’s most recent Visa Bulletin shows the category remains backlogged for those born in India and China, with priority dates receding years on the calendar. For Brazil and nearly all other countries — including Worldwide — EB-2 remains current or close to current in most months, allowing an approved petitioner to proceed to adjustment of status without additional wait in the consular queue.

This context makes the NIW structurally more advantageous for Brazilian professionals than for their Indian and Chinese counterparts: once the I-140 is approved, the path to the Green Card is relatively short. The bottleneck, therefore, is not the Visa Bulletin — it’s the adjudication of the I-140 itself.

What RFEs Are Asking For

Cross-referencing the USCIS data with AAO-published RFEs reveals a clear pattern. Dhanasar’s first prong — the substantial merit and national importance of the proposed endeavor — is rarely the stumbling block. Adjudicators generally accept that research in AI, semiconductors, clean energy, public health, or cybersecurity carries substantial national importance.

The second prong — that the petitioner is well positioned to advance the endeavor — is where most Brazilian petitions stumble. Listing publications or degrees is not enough. It is necessary to demonstrate a factual track record of execution: secured funding, signed contracts, citations showing real-world influence, third-party adoption of the technology, coverage in specialized media. The adjudicator wants evidence that the petitioner has already moved the needle, not merely that they have the credentials to do so.

The third prong — that, on balance, it benefits the United States to waive the job offer and labor market test — is often treated as a formality, but deserves attention. Arguing that the NIW’s flexibility is necessary because the petitioner’s work is multi-employer, multi-location, or entrepreneurial in nature tends to be more persuasive than simply restating the national importance argument.

How to Petition in 2026 with the Data in Hand

The picture painted by 2024 suggests a clear strategy for anyone petitioning now. First, treat the proposed endeavor as the heart of the petition, not an appendix. Every paragraph of the business plan or research proposal must tie a specific activity to a specific national need. Second, document past execution with primary sources — contracts, invoices, adoption screenshots, impact metrics — rather than generic recommendation letters. Third, choose support letters based on independence and technical depth, not the signatory’s prestige; an independent researcher who details exactly how they cite and use the petitioner’s work carries more weight than a famous name offering vague praise.

The 15% approval rate for Brazil-born petitioners is not a verdict on national talent. It is a signal about how Brazilian petitions are being built. In 2026, the petitioner who treats that statistic as a diagnosis — not a sentence — will have the advantage.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.