EB-2 NIW: surge in filings and a new adjudication standard

The EB-2 NIW has evolved from a niche route within EB-2 into the primary pathway for highly skilled professionals seeking a green card without relying on a U.S. job offer. USCIS data for fiscal year 2023 showed that the National Interest Waiver accounted for 43% of all EB-2 petitions, up from just 12% in 2018. That leap has reshaped the employment-based immigration landscape and continues to influence how petitions are evaluated in 2026.

The NIW surge in numbers

In an official report released by USCIS in April 2024, the agency consolidated filing trends for EB-2 and O-1A petitions in STEM fields. The document showed that total EB-2 filings reached 93,000 in fiscal year 2023, of which 81,300 were approved. The number of petitions rose approximately 10% compared to the prior cycle, while the volume of approvals declined 11% over the same period.

Within that total, NIW accounted for 43% of filings, compared to 26% in 2022 and 12% in 2018. NIW approvals rose from 19,090 in 2022 to 31,750 in 2023, a 66% increase in a single fiscal year. That figure is the clearest evidence that the job-offer waiver has moved well beyond niche status.

Why the NIW gained popularity

The standard EB-2 requires a U.S. employer to sponsor the position and complete a labor certification process known as PERM, conducted by the Department of Labor. That step can add between 8 and 18 months, depending on the labor market test, any audits, and reviews. For many highly qualified professionals, depending on that employer tie means sacrificing mobility and extending the timeline to a green card.

The NIW waives both the job offer and the labor certification. The applicant files the petition directly with USCIS using Form I-140, demonstrating that their work serves the national interest of the United States. This makes the application a self-directed path, viable for researchers, entrepreneurs, independent specialists, and senior professionals who do not want to be bound to a single employer.

The Matter of Dhanasar standard

NIW petitions are evaluated under the three-prong test established in Matter of Dhanasar, an administrative decision published by the AAO in December 2016. The first prong requires that the proposed endeavor have both substantial merit and national importance. The second requires that the applicant be well positioned to advance that endeavor. The third assesses whether granting the waiver benefits the United States on balance, compared to the traditional job-offer and labor-certification requirement.

The test replaced the prior standard based on New York State Department of Transportation and broadened the pool of eligible candidates. Professionals who previously could not fit their profile under the old model began filing viable petitions, particularly in fields with strong demand for human capital.

The weight of STEM fields

USCIS signaled in January 2022 an update to the adjudicator’s manual clarifying how STEM professionals (Science, Technology, Engineering, and Mathematics) can demonstrate eligibility for the NIW and for the O-1A. The guidance directs analysts to give weight to evidence such as contributions to advanced research, work in sectors critical to national security, and participation in projects aligned with U.S. government priorities.

Even so, EB-2 petitions focused on STEM fell from 61,790 in 2022 to 53,960 in 2023, a 13% decline. The trend suggests a reshaping of the applicant base, with professionals from other fields, such as business, finance, healthcare, and applied technology, occupying part of the space previously dominated by traditionally scientific profiles.

Declining approval rates

The EB-2 approval rate stood at 90% in 2023, down from 97% in 2022 and roughly 96% in the years immediately before. The decline is consistent with a rise in underprepared petitions, some assembled without the level of evidence required under the Dhanasar test. Petitions with a vague endeavor plan, a resume disconnected from the project, or superficial recommendation letters became more common during that period.

There is also a structural factor: as volume increased, USCIS began operating with more demanding adjudicators and issuing more requests for additional evidence, known as RFEs. The result is a stricter filter that rewards applicants who submit a well-documented case from the first filing.

The NIW landscape in 2026

The EB-2 NIW remains available in 2026 as an employment-based immigration category, but the regulatory environment continues to evolve. Changes announced by the U.S. executive branch throughout 2025, combined with adjustments to the USCIS internal manual, have raised the level of scrutiny applied to evidence of national impact, the endeavor plan, and the applicant’s track record. Before initiating a petition, it is advisable to consult the current version of the USCIS Policy Manual and the visa bulletin in effect for the EB-2 category.

Another operationally relevant point is the availability of premium processing for the I-140 under the EB-2 NIW category, rolled out on a phased basis by USCIS between 2023 and 2024. The service accelerates the initial review of the petition but does not replace the strength of the file or guarantee approval, since the merits analysis follows the same criteria.

Structure of a strong petition

A quality NIW petition is built around three components. The first is the definition of the endeavor: specifically what the professional proposes to do in the United States, in which sector, with what scope, and why that work matters at a national scale. The more concrete and grounded in public data the endeavor is, the stronger the claim of national importance.

The second component is demonstrating that the applicant is well positioned to advance the project. A strong resume, academic background, track record of achievements, academic citations, awards, media coverage, panel participation, and letters from independent professionals all help build that picture. The third component is the balance argument, showing why granting the waiver benefits the country on a proportionate basis, often supported by market statistics, labor shortage data, and sectoral trends.

Who tends to have the strongest fit

• Researchers and scientists with significant publications in peer-reviewed journals.
• Engineers, architects, and technology professionals working on projects with a multiplier effect.
• Entrepreneurs with demonstrated traction and a business plan capable of generating jobs and revenue in the United States.
• Healthcare, finance, energy, sustainability, and cybersecurity professionals who address topics treated as priorities by the U.S. government.

The category does not require a doctorate or an international award, but it does demand clear evidence that the applicant can move the needle in their field. Generic cases supported only by a degree and flattering letters have a lower probability of clearing the three-prong test.

What to review before applying

Those exploring the NIW should check the current priority date for the EB-2 category in the visa bulletin published by the Department of State, as countries with high demand face backlogs that affect the green card timeline. It is also worth monitoring updates to the USCIS Policy Manual, especially the chapters on merit analysis, RFEs, and evidence standards. The EB-2 NIW remains one of the most flexible routes in the U.S. immigration system, with the caveat that the consistent trend points toward increasingly rigorous expectations for the quality of the petition file.

About the author

Victoria Harper

Editor-in-Chief

Meet the author

As a journalist and lead editor at Visto n’ Visa, Victoria helps ensure that immigration topics are covered in a clear, trustworthy, and easy-to-understand way. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.