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.
This post explores the first prong of the Dhanasar framework: demonstrating that the proposed endeavor has both substantial merit AND national importance.
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.
The Matter of Dhanasar framework, which USCIS uses to evaluate NIW petitions, consists of three prongs:
- The proposed endeavor has both substantial merit and national importance
- The foreign national is well positioned to advance the proposed endeavor
- It would be beneficial to the United States to waive the job offer and labor certification requirements
Prong 1: Substantial Merit and National Importance
The first prong, substantial merit and national importance, forms the foundation of your NIW petition and demands careful attention. This prong focuses on the specific endeavor that the foreign national proposes to undertake.
Importantly, to satisfy the first prong, you must demonstrate that the benefits of your proposed endeavor go beyond your specific employer or business, and have broad implications for the field, a region, or the general American public.
For example, if you’re developing a software solution for a major corporation, you must show how your work extends beyond improving that specific company’s operations to potentially transforming industry practices, creating new technological capabilities with wider applications, or addressing challenges faced by many organizations or citizens.
Your petition must demonstrate that your work’s impact extends past your particular employer to affect positive change more broadly within the United States.
The Importance of Defining Your Endeavor
A critical yet often overlooked aspect of the first prong is precisely defining your endeavor. USCIS calls for “a detailed description explaining your proposed endeavor,” and makes clear that your endeavor is more specific than your general occupation. For example, stating “I intend to work as a mechanical engineer” is insufficient. Instead, you must detail the specific work you propose to undertake within that occupation.
When preparing your petition, you should:
- Provide a detailed description explaining your proposed endeavor with supporting documentary evidence establishing its national importance
- Be specific about the actual work you will perform, not just your general field or job title
- Explain your endeavor in a straightforward manner that clearly lays out its potential direct impacts
- Clarify the farther-reaching benefits that your endeavor will bring to the industry and the country. You may consider speaking briefly to the mode of effectuating your proposed endeavor, whether through avenues like independent research or the method of developing your unique method or idea. However, it should not too closely reference or rely upon the method of employment for the endeavor, as such over-emphasis may risk USCIS assuming the endeavor is merely to work in a particular company or start a business
Understanding “Substantial Merit”
Substantial merit refers to the intrinsic value and significance of your proposed work. The good news? Merit can be demonstrated across a wide range of domains, including, but not limited to:
- Business and entrepreneurship
- Scientific research and technological innovation
- Cultural contributions and arts
- Healthcare and medical advancements
- Educational initiatives
- Environmental conservation
- Social service projects
Importantly, you don’t necessarily need to demonstrate immediate or quantifiable economic impact to establish substantial merit, though such evidence would certainly strengthen your case. USCIS recognizes that contributions to knowledge, human welfare, cultural understanding, and other non-economic benefits can have substantial merit as well.
Understanding “National Importance”
For the national importance component under Dhanasar, USCIS now evaluates the potential prospective impact of your endeavor rather than merely its geographic reach.
As clarified in the decision, “an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, may well be understood to have national importance.”
This shift acknowledges that even locally-focused projects can have broader implications for the nation as a whole. Your endeavor might address:
- Advancing a field or industry that is critical to U.S. interests
- Addressing important domestic challenges or priorities
- Enhancing U.S. economic competitiveness or technological leadership
- Improving public health, environmental quality, or national security
- Creating jobs or economic opportunities, especially in underserved areas
