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Matter of Dhanasar

The EB-2 National Interest Waiver (NIW) is an attractive immigration option for professionals with advanced degrees or individuals of exceptional ability seeking to work in the United States. Unlike other employment-based visas, the NIW allows applicants to bypass the labor certification process, which typically requires a job offer and a U.S. employer sponsor. Instead, applicants must demonstrate that their work benefits the United States sufficiently to merit a waiver of the job offer requirement.

One of the most critical aspects of the NIW application process is satisfying the three-prong test established in the landmark case, Matter of Dhanasar (2016). This test replaced the earlier NYSDOT standard and has since become the benchmark for evaluating NIW petitions. Understanding this test is essential for anyone considering an NIW application.

You can review the full decision in Matter of Dhanasar here.

The Matter of Dhanasar Three-Prong Test​

To qualify for an NIW under the Dhanasar framework, applicants must meet the following three criteria:

1. The Proposed Endeavor Has Substantial Merit and National Importance​

The first prong requires the applicant to demonstrate that their proposed work is of substantial merit and national importance. This does not necessarily mean the endeavor must have a direct national scope, but it should have broader implications or the potential to benefit the United States on a national level. This can be shown in fields like science, technology, culture, education, or business, where the outcomes of the work may positively impact the U.S. economy, healthcare, environment, or other significant areas.

Key Considerations:

  • The endeavor’s intrinsic value, such as advancing knowledge in a field or addressing a critical need.
  • The potential impact on a wide range of people or regions, even if the work is localized.

2. The Applicant Is Well-Positioned to Advance the Proposed Endeavor​

The second prong focuses on the applicant's ability to succeed in their proposed endeavor. It requires demonstrating that the applicant possesses the skills, experience, and qualifications necessary to advance their work successfully. This can include a combination of education, expertise, a record of success in similar or related activities, and any plans or resources already in place that support the likelihood of achieving the proposed goals.

Key Considerations:

  • Documented evidence of relevant education, skills, and experience.
  • A history of achievements or success in the field related to the proposed endeavor.
  • Any endorsements, awards, or recognition from industry peers.

3. On Balance, It Would Be Beneficial to the United States to Waive the Job Offer and Labor Certification Requirements​

The third prong involves a balancing test where the applicant must prove that granting the NIW is in the national interest. The U.S. Citizenship and Immigration Services (USCIS) considers whether the benefits of the applicant’s contributions outweigh the need for labor certification. Essentially, the applicant must show that the endeavor is so important that the U.S. would be better off waiving the standard job offer and labor certification process, which typically ensures that foreign workers do not negatively impact U.S. workers.

Key Considerations:

  • The importance of the endeavor in relation to current U.S. needs and priorities.
  • How the applicant’s contributions would benefit the U.S. more than adhering to the standard labor certification process.
  • The urgency or uniqueness of the applicant's contributions, especially if U.S. workers cannot easily fulfill the role.

Practical Application of the Three-Prong Test​

Meeting the Dhanasar three-prong test requires a well-documented and compelling case. Applicants should present detailed evidence and a strong narrative that clearly aligns their work with the test's requirements. Each prong must be addressed thoroughly, with supporting documentation to substantiate claims, such as publications, letters of recommendation, evidence of past achievements, and a clear explanation of the national benefits of the proposed endeavor.

Conclusion​

The Matter of Dhanasar three-prong test is the cornerstone of the NIW petition process. Successfully navigating this test requires a strategic approach that highlights the national importance of the work, the applicant’s qualifications, and the broader benefits to the United States. For those who meet the criteria, the NIW offers a unique pathway to obtaining a green card without the constraints of a traditional employer-sponsored visa.

Understanding and effectively addressing the Dhanasar test can open the door to exciting opportunities for professionals and exceptional individuals eager to contribute to the U.S. and secure their place in its future.