NIW Eligibility Criteria: The Three Prong Test

The EB-2 NIW offers foreign professionals a unique opportunity to bypass the labor certification process by demonstrating the substantial benefits of their work to the United States.

In 2016, the United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) issued a landmark decision in Matter of Dhanasar. This decision overturned the prior precedent decision of NYSDOT and established new guidelines for determining whether an EB-2 visa petitioner is eligible for a National Interest Waiver.

The Matter of Dhanasar framework consists of three prongs:

1. The proposed endeavor has both substantial merit and national importance
2. The foreign national is well positioned to advance the proposed endeavor
3. It would be beneficial to the United States to waive the job offer and labor certification requirements 

Prong 2: Well Positioned to Advance the Endeavor 

While the first prong focuses on the proposed endeavor itself (its substantial merit and national importance), the second prong shifts attention to the petitioner themselves. This crucial element requires petitioners to demonstrate that they possess the necessary qualifications, background, and prospective positioning to successfully advance their proposed work. 

The second prong asks a fundamental question: “Why are you the right person to carry out this important work?” It connects the significance of the endeavor with your specific ability to make it happen. 

Key Factors USCIS Considers for Prong 2 

When assessing whether an individual is well-positioned to advance their endeavor, the Dhanasar decision outlined four key factors: 

1. Education, skills, knowledge, and record of success in related or similar efforts 
2. Models or plans that the individual developed (or significantly contributed to) for future activities related to the proposed endeavor 
3. Progress already made toward achieving the proposed endeavor 
4. Interest or support garnered from potential customers, users, investors, or other relevant entities 

Importantly, you need not prove that your endeavor will ultimately succeed. Rather, you must demonstrate that you are personally well-positioned to advance it meaningfully. 

Evidence for Demonstrating You Are Well Positioned 

To successfully demonstrate that you are well positioned to advance your proposed endeavor, consider including: 

• Credentials: Advanced degrees, specialized certificates, or licenses in the field 
• Intellectual property: Patents, trademarks, or copyrights you’ve developed 
• Independent expert evaluations: Letters from recognized experts describing your past achievements and potential 
• Publication record: Published articles about your work or media coverage of your achievements 
• Citation impact: Documentation showing how your work has been cited or adopted within your field 
• Business planning: Detailed plans outlining how you’ll continue your work in the United States 
• Financial support: Evidence of investment, grants, or other financial backing 
• Contracts and agreements: Documentation showing relationships with clients, customers, or collaborators 
• Government interest: Letters of support from relevant government or quasi-governmental entities 
• Practical implementation: Evidence showing how your work is being used by others 

Strong evidence should include both past accomplishments and positioning for future success.