Last updated: October 2026. Checked against Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), and the USCIS Policy Manual, Volume 6, Part F, Chapter 5 (current as of October 2, 2026).
The three prongs of EB2 NIW are the test USCIS uses to decide whether to waive the job offer and labor certification for an EB-2 petitioner. Under Matter of Dhanasar, you must show by a preponderance of the evidence that (1) your proposed endeavor has both substantial merit and national importance, (2) you are well positioned to advance it, and (3) on balance, it would benefit the United States to waive the job offer and labor certification. If you meet all three, USCIS “may” approve the waiver as a matter of discretion.
This page is the overview of the whole test: where it came from, how the prongs fit together and how the AAO applied them in Dhanasar itself. Prongs 1 and 2 each have a deep-dive guide, linked below. Prong 3 is covered in the most detail here. The test applies only after you qualify for EB-2; for that first step, see who qualifies for EB2 NIW.
Key takeaways
- The test comes from an Administrative Appeals Office (AAO) precedent decision, Matter of Dhanasar, decided December 27, 2016. It is not a USCIS regulation, and it did not come from a lawsuit.
- Dhanasar vacated the older NYSDOT test. “Intrinsic merit,” “national in scope” and “harm to the national interest” are no longer the standard.
- Prong 1 is about the endeavor, prong 2 is about you, and prong 3 is a balancing test about the waiver itself.
- Prong 3 does not require you to prove that no U.S. worker is available. A national labor shortage alone does not satisfy it (USCIS Policy Manual).
- No fixed number of recommendation letters is required. USCIS’s evidence list “is not meant to be a checklist.”
Where the three prongs of EB2 NIW come from
The statute lets the Secretary of Homeland Security waive the job offer “when the [Secretary] deems it to be in the national interest,” but Dhanasar notes that “national interest” is “undefined by statute and regulation.” From 1998 to 2016, USCIS applied the framework in Matter of New York State Dept. of Transportation (NYSDOT). In Dhanasar, the AAO explained why it replaced that framework:
- The word “intrinsic” in “substantial intrinsic merit” “adds little to the analysis yet is susceptible to unnecessary subjective evaluation.”
- “National in scope” was sometimes “construed too narrowly by focusing primarily on the geographic impact.”
- NYSDOT’s third prong caused “the greatest confusion.” It was stated several different ways, could be read to require evidence for the very labor market test the waiver is meant to skip, and was “particularly ill-suited” to self-employed people such as entrepreneurs.
The AAO then adopted the three prongs USCIS uses today and said the new test should “apply more flexibly” to both employer petitions and self-petitions. Dr. Dhanasar’s own appeal was sustained and his petition approved.
The three prongs of EB2 NIW at a glance
| Prong | Question USCIS asks | Focus | Factors USCIS considers | Deep dive |
|---|---|---|---|---|
| 1. Substantial merit and national importance | Is this specific endeavor valuable, and does its potential impact reach beyond a local or private benefit? | The endeavor | Merit in areas such as “business, entrepreneurialism, science, technology, culture, health, or education”; potential prospective impact; broader implications, not just geography | Proving national importance |
| 2. Well positioned to advance the endeavor | Can this person realistically move the endeavor forward? | The person | Education, skills, knowledge and record of success in related efforts; a model or plan; progress so far; interest from customers, users, investors or others | Proving you are well positioned |
| 3. On balance, beneficial to waive | Does the U.S. gain more by waiving the job offer and labor certification than by keeping them? | The waiver | Impracticality of labor certification; benefit even if U.S. workers are available; urgency; plus economic impact, job creation and STEM factors from the Policy Manual | Covered below |
Prong 1: substantial merit and national importance
The first prong “focuses on the specific endeavor that the foreign national proposes to undertake” (Dhanasar, 26 I&N Dec. at 889). Merit can exist without a measurable economic payoff. Dhanasar says research and pure science “may qualify, whether or not” they translate into economic benefits. National importance looks at “potential prospective impact,” and even work focused on one region can qualify if it has broader implications.
Two Policy Manual points cause many prong 1 problems. The endeavor is “more specific than the general occupation,” and proposing to work in a shortage occupation is, on its own, “insufficient.” For USCIS’s own examples, typical RFE wording and weak-versus-strong framings, read our guide to proving national importance for EB2 NIW.
Prong 2: well positioned to advance the endeavor
The second prong “shifts the focus from the proposed endeavor to the foreign national.” USCIS weighs four factors together: your education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; progress toward the endeavor; and the interest of potential customers, users, investors or other relevant parties. Dhanasar does not require you to prove the endeavor will “more likely than not” succeed, because “many innovations and entrepreneurial endeavors may ultimately fail.”
The Policy Manual adds that a STEM Ph.D. tied to the endeavor is “an especially positive factor,” but a degree “in and of itself” is not enough. Letters carry weight when they come from experts with first-hand knowledge and are supported by independent evidence. Evidence strategy, the letters test and business plans are covered in our guide to proving you are well positioned.
Want to know which prong is the weak spot in your case? Our free profile evaluation reviews your endeavor and evidence against all three prongs.
Prong 3: on balance, beneficial to waive the job offer
Prong 3 is the one most often misdescribed. It is not a test of whether qualified U.S. workers exist. Dhanasar describes it as a balance. Congress protects U.S. workers through job offers and labor certification, but it also recognized that “in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest.” The Policy Manual puts it as showing that “the factors in favor of granting the waiver outweigh those that support the requirement of a job offer.”
Dhanasar lists three factors USCIS may evaluate, and the Policy Manual adds more. You do not need all of them. “In each case, the factor(s) considered must, taken together, indicate that on balance” the waiver benefits the United States.
| Prong 3 factor | What it means | Source |
|---|---|---|
| Labor certification is impractical | Given your qualifications or endeavor, it would be impractical to get a job offer or labor certification. Examples: an employer could not capture “unique knowledge or skills” in a labor certification, or an entrepreneur or self-employed inventor has no U.S. employer to sponsor them | Dhanasar at 890 and footnote 10 |
| Benefit even if U.S. workers are available | The U.S. would still benefit from your contributions “even assuming that other qualified U.S. workers are available” | Dhanasar at 891 |
| Urgency | The national interest in your contributions is “sufficiently urgent to warrant forgoing the labor certification process,” for example a time-sensitive public health or safety benefit | Dhanasar at 891; Policy Manual |
| Economic impact and job creation | Whether the endeavor could generate considerable economic impact, and whether it “may lead to potential job creation” | Policy Manual |
| Self-employment | Where you are self-employed in a way that generally does not adversely affect U.S. workers, or your business creates jobs for them, labor certification may offer little benefit | Policy Manual |
| STEM combination | An advanced STEM degree (especially a Ph.D.), work in a critical and emerging technology or other STEM area important to U.S. competitiveness, and being well positioned to advance it, taken together, are “a strong positive factor” | Policy Manual |
Two limits matter. First, the Policy Manual says “evidence of a national labor shortage in the person’s occupation would not, by itself, satisfy this third prong.” Second, Dhanasar stresses that the new prong “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” A prong 3 argument built on “there aren’t enough people like me” therefore misses the point. A stronger argument explains why your particular contribution is worth more to the country than the protection a labor market test would provide.
How the AAO applied the three prongs to Dr. Dhanasar
The decision is also a worked example. The petitioner was an aerospace engineering researcher and educator who held two master’s degrees and a Ph.D.
| Prong | AAO finding | Evidence the AAO relied on |
|---|---|---|
| 1 | Research on hypersonic propulsion had substantial merit and national importance | Expert letters from senior figures in academia, government and industry; media articles and evidence of interest from the House Committee on Armed Services in hypersonic technology |
| 2 | Well positioned to advance the research | Three graduate degrees in related fields; research supporting Defense Department missions; a significant role in projects funded by NASA and the Air Force Research Laboratory |
| 3 | On balance, beneficial to waive | A record of successful research in an area that furthers U.S. interests, valuable “even assuming that other qualified U.S. workers are available” |
| Teaching (second endeavor) | Failed prong 1 national importance; the remaining prongs were not reached | STEM teaching had merit, but the record did not show an impact on STEM education “more broadly” |
The last row shows how the prongs work in sequence. A part of the endeavor that fails prong 1 is not analyzed further.
How the prongs work together
- One endeavor runs through all three. The endeavor defined for prong 1 is the one you must be positioned to advance under prong 2 and the one weighed under prong 3. Changing it partway through weakens the whole case.
- All three must be met. Strength on one prong does not make up for failure on another.
- Quality over quantity. Under the preponderance standard, Dhanasar says USCIS considers “not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence.”
- Discretion still applies. Meeting the prongs makes approval possible, not automatic. The petitioner must also show the case “otherwise merits a favorable exercise of discretion.”
What changed in 2025 and 2026
The January 15, 2025 USCIS update did not replace Dhanasar. It clarified how officers decide national importance (prong 1) and how they weigh letters of support and business plans when deciding whether someone is well positioned (prong 2). Separately, a USCIS policy alert of August 5, 2026 allows denial without a prior RFE when required initial evidence is missing. Your first filing should therefore address every prong in full, not leave gaps for an RFE to fill.
Old ideas about the three prongs of EB2 NIW to drop
| Outdated or wrong idea | What the current sources say |
|---|---|
| “USCIS created the test through a court case” | The AAO set it in a precedent decision, Matter of Dhanasar (2016), which the Policy Manual applies |
| “Your work must have substantial intrinsic merit” | “Intrinsic” was dropped; the test is substantial merit and national importance |
| “The benefit must be national in scope” | Dhanasar replaced this with national importance and does not judge impact “solely in geographic terms” |
| “Prove no qualified U.S. worker is available” | Not required; prong 3 is a balance and needs no comparison with U.S. workers |
| “A worker shortage in my field proves prong 3” | A national labor shortage does not, by itself, satisfy prong 3 |
| “You need 5 to 7 recommendation letters” | No number is set by USCIS. Letters help when they come from experts with first-hand knowledge and are backed by independent evidence |
Frequently Asked Questions
What is the Dhanasar test?
It is the three-prong framework from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), that USCIS uses to decide EB-2 national interest waivers: substantial merit and national importance, well positioned, and a balance favoring the waiver.
Do I have to meet all three prongs?
Yes. You must establish each prong by a preponderance of the evidence. Even then, approval is discretionary.
Does the test apply to entrepreneurs and self-petitioners?
Yes. Dhanasar was written partly to fix how the old test treated self-employed people, and it uses “petitioners” to include self-petitioners. The Policy Manual adds that not every entrepreneur qualifies; broad claims of job creation are not enough on their own.
Is NYSDOT still used?
No. Dhanasar vacated Matter of New York State Dept. of Transportation in 2016. Guidance that still uses its wording is out of date.
Where do I describe the three prongs in my petition?
Usually in the petition letter that accompanies Form I-140, with exhibits organized by prong. Our application process guide explains where that fits in the overall filing.
Skycap Consultancy prepares EB-2 NIW petitions; we are not a law firm. For legal advice about your case, consult a licensed immigration attorney. Ready to test your case against all three prongs? Start with a free EB-2 NIW profile evaluation.
Related guides
- EB2 NIW application process: step by step
- EB-2 NIW self-petition guide
- EB2 NIW proposed endeavor examples
- What is EB-2 NIW?
- EB2 NIW Free Evaluation
This article is general information, not legal advice. Skycap Consultancy is a petition-preparation consultancy, not a law firm. Requirements and fees change; check the linked USCIS pages before filing.
