Matter of Dhanasar: The Three-Prong Test of the EB-2 NIW

The Matter of Dhanasar decision, issued in December 2016 by the USCIS Administrative Appeals Office (AAO), is the legal precedent that governs all EB-2 NIW (National Interest Waiver) petitions in the United States. Before this decision, the standard used was NYSDOT (New York State Department of Transportation), a strict test that excluded most professionals not engaged in traditional academic research. Dhanasar replaced this framework with a more flexible and accessible three-pronged test, paving the way for entrepreneurs, technology, health, and business professionals to obtain a Green Card without the need for a job offer or labor certification.

As of April 2026, the Dhanasar framework remains the current and mandatory standard for evaluating NIW petitions. The I-140 form fee is US$ 715, with premium processing available for US$ 2,965 (guaranteed decision within 45 business days). Standard processing time ranges from 18 to 24 months, depending on the service center.

Understanding the three Dhanasar criteria is the first step to building a strong petition. Each criterion requires specific evidence, and weakness in any of them can result in denial.

The Previous Standard: NYSDOT

Before Dhanasar, the NYSDOT test imposed three particularly restrictive requirements. The petitioner had to prove that their work had intrinsic merit, that its impact was of national scope (not regional or local), and that requiring labor certification would be detrimental to the national interest. This last requirement was especially problematic: proving hypothetical harm is inherently more difficult than demonstrating a concrete benefit.

In practice, NYSDOT favored researchers with extensive publications and academic citations, leaving out equally qualified professionals working in the private sector, entrepreneurship, or applied fields. Software engineers, entrepreneurs, healthcare professionals without publications, and business specialists rarely obtained approval under this standard.

The Three Dhanasar Criteria

The Dhanasar framework restructured the evaluation into three progressive criteria. Each builds upon the previous one, and all must be satisfied for petition approval.

Substantial Merit and National Importance

The first criterion requires that the petitioner’s proposed endeavor have substantial merit and national importance. These are distinct but complementary concepts. Substantial merit refers to the intrinsic value of the work in fields such as technology, health, education, business, or science. National importance assesses whether the impact transcends the petitioner’s employer or immediate locality.

A crucial change from Dhanasar was eliminating the requirement that the work have literally national reach. The AAO recognized that work with a regional or sectoral focus can have national importance when it contributes to economic development, technological advancement, public health, or other national priorities. An engineer optimizing processes at a factory in Texas contributes to American industrial competitiveness, even if their direct work is localized.

Evidence supporting this criterion includes patents, publications and citations, awards and professional recognitions, sectoral impact reports, coverage in specialized media, contracts or revenue generated, and comparable performance metrics.

Well Positioned to Advance

The second criterion assesses whether the petitioner has a real ability to execute the proposed work in the United States. Unlike NYSDOT, which focused almost exclusively on past achievements, Dhanasar balances proven track record with future potential.

USCIS reviews: academic background and professional credentials, career progression history (promotions, salary increases), recommendation letters from industry experts, patents and intellectual property, evidence of successfully completed projects, investments or funding obtained, and a coherent professional plan for the United States.

Recommendation letters are an important component, but USCIS has emphasized a preference for objective evidence over personal endorsements. A letter alone does not satisfy this criterion; it must be corroborated by concrete documentation of the achievements mentioned. Letters from independent experts (who have no personal or direct professional relationship with the petitioner) carry more weight than letters from colleagues or supervisors.

Balancing Test

The third criterion is what most distinguishes Dhanasar from the previous standard. Instead of requiring proof that labor certification would be detrimental, Dhanasar asks the petitioner to demonstrate that, on balance, it would be beneficial for the United States to waive the job offer and labor certification requirements.

This shift in perspective is transformative. The petitioner argues for the positive merits of their contribution, not the impossibility of a bureaucratic process. Elements that strengthen this argument include: unique or scarce skills in the U.S. labor market, urgency of the contribution to national priorities (such as cybersecurity, clean energy, artificial intelligence, or health), impracticality of labor certification for entrepreneurs and self-employed individuals, and benefits that would be lost or delayed by the traditional PERM process.

Profiles That Benefit

The flexibility of the framework has significantly expanded the universe of professionals eligible for the EB-2 NIW. Among the profiles that benefit most are:

• Software engineers and IT professionals who develop critical systems or technological innovations
• Entrepreneurs and business owners who create jobs and drive the economy
• Healthcare professionals working in areas with labor shortages
• Data scientists and AI specialists working in fields of national priority
• Engineers of various specialties who contribute to infrastructure and manufacturing
• Independent researchers who are not affiliated with traditional academic institutions

The key point is that Dhanasar does not require academic publications. Professionals with a solid track record in the private sector can demonstrate merit and national importance through commercial results, patents, organizational impact, and measurable contributions.

Assembling the I-140 Petition

A well-structured EB-2 NIW petition under Dhanasar includes the I-140 form with a US$ 715 fee, a detailed cover letter explaining how each of the three criteria is met, supporting documentation organized by criterion, recommendation letters from independent experts, a detailed resume with evidence of each cited achievement, and the ETA-9089 form (completed but not certified, since the NIW waives labor certification).

Premium processing via the I-907 form has been available for EB-2 NIW I-140 petitions since March 2022. The fee of US$ 2,965 (updated as of March 2026) guarantees USCIS action within 45 business days, which may be approval, denial, RFE (Request for Evidence), or NOID (Notice of Intent to Deny).

Approval and Trends

Since the implementation of Dhanasar, the approval rate for EB-2 NIW petitions has increased significantly compared to the NYSDOT period. Recent data indicate an approval rate of around 67%, although this number varies depending on the quality of evidence, field of work, and consistency of legal argumentation.

The main cause of denials continues to be weakness in the third criterion: petitioners who demonstrate merit and qualification but fail to convincingly articulate why waiving labor certification benefits the United States. Petitions that focus only on personal benefits (career, salary) without connecting them to broader national interests face higher denial rates.

For beneficiaries born outside India and China, the EB-2 category is current in the April 2026 Visa Bulletin, meaning there is no significant waiting list after I-140 approval. This makes the EB-2 NIW one of the most efficient routes to a Green Card in 2026 for qualified professionals from most countries.

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.