Matter of Dhanasar: The Test that Redefined the EB-2 NIW

The Matter of Dhanasar is the most important legal decision for those seeking a green card through the EB-2 National Interest Waiver (NIW). Issued in December 2016 by the Administrative Appeals Office (AAO) of USCIS, this decision replaced the old NYSDOT standard and established a three-pronged framework that made the self-petition process more flexible and accessible for qualified professionals.

Before Dhanasar, the EB-2 NIW path was narrow and rigid, favoring almost exclusively researchers with robust academic publications. The new framework opened doors for software engineers, entrepreneurs, healthcare professionals, data scientists, and many other fields, recognizing that practical and applied contributions also serve the national interest.

Understanding the three Dhanasar criteria in depth is essential for any EB-2 NIW applicant, as the strength of the petition depends directly on how each is addressed and documented.

The old NYSDOT standard

Before 2016, EB-2 NIW petitions were evaluated under the standard established in the New York State Department of Transportation (NYSDOT) case from 1998. This framework required the petitioner to demonstrate three points:

1. That their work had “intrinsic merit”
2. That the impact was national in scope
3. That requiring labor certification would be detrimental to the national interest

The main problem with NYSDOT was in the second and third criteria. Requiring the work to have a “national” impact excluded professionals whose contributions, although significant, were regional or sectoral. The requirement to prove that labor certification would be “detrimental” created an almost impossible logical barrier: how to demonstrate that a standard administrative process would harm the country?

In practice, NYSDOT favored academic researchers with widely cited publications and made it extremely difficult for entrepreneurs, industry professionals, and self-employed workers to get approved.

The three Dhanasar criteria

The Matter of Dhanasar replaced NYSDOT with a more modern and balanced framework, composed of three criteria (prongs) that must be demonstrated by a preponderance of the evidence:

Substantial merit and national importance

The first criterion assesses whether the petitioner’s proposed endeavor has substantial merit and national importance. These are distinct but complementary concepts. Substantial merit refers to the intrinsic value of the work in areas such as technology, business, science, health, or education. National importance assesses whether the impact broadly benefits the United States.

A crucial change introduced by Dhanasar is that the work does not need to have direct national reach. Endeavors with a regional or sectoral focus can be considered nationally important if they address national interest priorities, such as economic development, public health, or technological advancement. For example, a telemedicine project serving rural communities in a single state can demonstrate national importance by addressing the lack of healthcare access.

Evidence supporting this criterion includes patents and innovative contributions, industry awards and recognitions, sector impact reports, media coverage, and cited publications. Academic publications are not mandatory, contrary to what many applicants believe.

Well positioned to advance

The second criterion shifts the focus from the endeavor to the petitioner. USCIS evaluates whether the applicant has the qualifications, experience, and resources to actually execute the proposed endeavor. It is not enough to have a valuable idea; one must demonstrate the ability to turn it into reality.

Relevant evidence includes a detailed resume, a history of measurable achievements, patents, awards, promotions, recommendation letters from field experts, concrete results from previous projects, and investments or grants obtained. USCIS values objective evidence over subjective endorsements: a recommendation letter alone is not enough, but combined with quantifiable impact data, it significantly strengthens the petition.

Dhanasar also introduced an important forward-looking perspective: in addition to evaluating past achievements, USCIS considers the petitioner’s future potential to advance the proposed endeavor. This especially benefits early-career professionals with a proven upward trajectory.

Balancing test

The third criterion is perhaps the most significant change compared to NYSDOT. Instead of requiring the petitioner to prove that labor certification would be “detrimental,” Dhanasar introduced a balancing test: the petitioner must demonstrate that, on the whole, it would benefit the United States to waive the job offer and labor certification (PERM) requirements.

In practice, this means arguing that the professional’s contributions justify the flexibility of not going through the conventional process. Effective arguments include unique skills not easily found in the U.S. labor market, urgency of the contribution to national priorities such as cybersecurity or health, impracticality of labor certification for entrepreneurs and business owners, and potential for job creation and economic growth.

Who benefits from Dhanasar

The framework has significantly expanded the universe of professionals eligible for the EB-2 NIW. Profiles that benefit directly include:

• Technology entrepreneurs: innovators in artificial intelligence, blockchain, cybersecurity, or healthtech developing solutions with economic impact in the U.S.
• Software engineers: developers creating critical systems and applications that drive American technological advancement.
• Data scientists: specialists using AI and big data to solve complex problems across multiple industries.
• Healthcare professionals: doctors and nurses addressing critical medical workforce needs, especially in underserved areas.
• Logistics specialists: professionals improving supply chain efficiency through automation and predictive analytics.
• Independent researchers: scientists working outside traditional universities but producing research with proven impact.

Costs and processing in 2026

The I-140 petition for EB-2 NIW has a filing fee of US$ 715 with USCIS. For expedited processing, premium processing via form I-907 costs US$ 2,965 (rate effective since March 2026) and guarantees USCIS action within 45 business days. Self-petitioners also pay an additional US$ 300 fee for the Asylum Programme Fee.

The EB-2 NIW approval rate has been significantly higher since the adoption of the Dhanasar framework. In January 2025, USCIS issued an official guidance update reinforcing how petitions should be evaluated, emphasizing that the petitioner must first establish EB-2 eligibility and then address each of the three criteria with credible and relevant evidence linked to the proposed endeavor.

Elements of a strong petition

A well-prepared EB-2 NIW petition under the Dhanasar framework should include:

• Persuasive petition letter: a detailed document demonstrating how the applicant meets each of the three criteria, with specific references to attached evidence.
• Evidence of contributions: patents, publications, awards, media coverage, industry impact reports, and quantifiable performance metrics.
• Recommendation letters: from recognized experts in the field, preferably with no personal relationship to the petitioner, validating the importance and impact of the work.
• Form I-140: the formal documentation required by USCIS for processing the immigrant petition.

The Matter of Dhanasar democratized access to the green card via EB-2 NIW by creating clearer, more flexible criteria adapted to the contemporary labor market reality. For qualified professionals whose work serves the national interest, the framework offers a viable path to permanent residency in the United States without relying on a sponsoring employer.

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.