EB-2 NIW: What Changed in the New USCIS Policy Guidance

The USCIS published on January 15, 2025, a significant update to the Policy Manual governing EB-2 NIW (National Interest Waiver) petitions, consolidating how the agency applies the three-prong test from Matter of Dhanasar and detailing the type of evidence petitioners must present. The guidance appears in Volume 6, Part F, Chapter 5 of the manual and took effect immediately, reshaping the strategy for anyone preparing a petition in 2026.

A careful reading of this guidance is decisive. USCIS did not rewrite the legal criteria, but expanded examples, clarified gray areas, and explicitly indicated which professional fields the agency considers to be in the national interest. For the well-informed applicant, this dramatically reduces the risk of receiving a Request for Evidence (RFE) or having a case denied due to misunderstanding the evidentiary standard.

Who Qualifies for EB-2

Before seeking the NIW, applicants must first establish eligibility for the EB-2 category itself. The category encompasses two paths: professionals with an advanced degree (master’s, doctorate, or bachelor’s degree accompanied by at least five years of progressive experience) and individuals with exceptional ability in the sciences, arts, or business.

USCIS reinforced that this initial qualification is a non-negotiable prerequisite. Without it, the national interest analysis never begins. The new guidance details how the agency evaluates whether an occupation technically qualifies as a profession — relevant for applicants whose field does not require a labor certification from the Department of Labor.

The Reformulated Dhanasar Test

The Matter of Dhanasar, decided in 2016 by the Administrative Appeals Office, established three prongs the petitioner must demonstrate. The 2025 guidance adds specific examples for each.

Substantial Merit and National Importance

The proposed endeavor must have substantial merit and importance that extends beyond the local sphere. USCIS made clear that pure research, basic science, and the advancement of human knowledge may qualify even without immediate economic returns. This benefits academic researchers, scientists at early career stages, and professionals working in emerging technologies.

Applicant’s Position to Advance the Endeavor

The second prong requires demonstrating that the applicant is well-positioned to advance the endeavor. For entrepreneurs, the new guidance enumerates accepted evidence: issued patents, venture capital investments, active commercial contracts, partnerships with universities or national laboratories, participation in accelerator programs, and measurable market traction.

Balancing U.S. Interests

The third prong evaluates whether requiring a job offer and labor certification (PERM) would be contrary to U.S. interests when weighed against the benefit of approving the case without those steps. USCIS detailed scenarios in which the urgency, the uniqueness of the applicant’s profile, or the nature of the endeavor justifies waiving the PERM requirement.

STEM and Critical Technologies

The guidance explicitly acknowledges that STEM fields and critical technologies carry significant weight in the national interest analysis. Professionals in artificial intelligence, semiconductors, biotechnology, clean energy, quantum computing, and cybersecurity find more favorable ground when aligning their endeavor with strategic priorities formally recognized by the U.S. government, such as the National Science and Technology Council Critical and Emerging Technologies List.

This recognition is not a blank check, however. Applicants must still demonstrate measurable individual contributions and the capacity to advance the proposed work on U.S. soil.

The Practical Process in 2026

The EB-2 NIW continues to be filed via Form I-140, which may be submitted by the beneficiary themselves (self-petition) — one of the NIW’s central advantages over standard EB-2. The current I-140 filing fee is $715, per the USCIS fee schedule in effect since April 1, 2024.

Applicants who wish to expedite adjudication may request premium processing, which reduces the timeline to 45 business days for an additional fee. Regular processing times vary by the assigned service center and can be checked at egov.uscis.gov/processing-times.

Documentation That Makes a Difference

The petition package must establish a coherent narrative connecting academic background, professional experience, the proposed endeavor, and anticipated impact. Independent expert letters carry even greater weight under the new guidance, particularly when they technically link the applicant’s contribution to concrete national interest problems.

Peer-reviewed publications, citations in scientific literature, industry awards, editorial committee membership, peer review for high-impact journals, government contracts, congressional hearing testimony, and documented adoption of the applicant’s technology or methodology are examples of evidence USCIS considers robust.

Mistakes That Still Sink Cases

Even with the added clarity, three errors remain common. The first is treating the NIW as a generic exceptional ability petition — the agency expects the petitioner to articulate a specific endeavor with a plan and measurable outcomes. The second is relying exclusively on generic recommendation letters that lack a technical connection between the contribution and the national interest. The third is underestimating the EB-2 eligibility step and submitting incomplete academic documentation or poor technical translations.

The Visa Bulletin and Real Timelines

Beyond I-140 adjudication time, applicants must monitor the Visa Bulletin published monthly by the Department of State. The EB-2 category for Brazil-born applicants experienced occasional retrogression in mid-2025, which affects adjustment of status (Form I-485) and consular processing. Tracking the bulletin is part of the strategy, not a bureaucratic afterthought.

Who Benefits from the New Guidance

Early-stage researchers, startup founders with measurable traction, and professionals in fields critical to U.S. competitiveness stand to gain the most. Those working in fields without formal national interest recognition need to invest more effort in demonstrating the systemic relevance of their endeavor — but the path remains open, provided the case is custom-built around the Dhanasar test as USCIS applies it in 2026.

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.