NIW National Interest Waiver Application Criteria: Education, Background, and Standards

The EB-2 NIW (National Interest Waiver) is a high-quality pathway within U.S. employment-based immigration. It is highly favored by high-level professionals because it does not rely on employer sponsorship and offers relatively flexible procedures. However, this category imposes dual requirements on applicants: they must meet the basic educational or ability threshold of the EB-2 category and also pass a three-pronged substantive test for the national interest waiver. Unlike immigration categories that rely solely on educational credentials, the NIW emphasizes the combination of the individual and their proposed endeavor, requiring applicants to not only have a strong background but also clearly demonstrate that their proposed work will bring significant value to the United States. Understanding the requirements of these two thresholds is a critical starting point for determining the likelihood of a successful application. The following section provides a detailed analysis of the basic EB-2 qualifications and the three-pronged Dhanasar criteria, to help applicants assess their eligibility and lay a solid foundation for preparing their materials.

Two-Tiered Requirements of the EB-2 NIW Application

Applicants must first meet the basic EB-2 eligibility requirements, and then satisfy the national interest waiver standards.

1. Basic EB-2 Eligibility

Advanced Degree or Exceptional Ability. All NIW applicants must first demonstrate that they meet the basic qualifications for the EB-2 category:

• Advanced Degree Professionals: Generally, this requires a master’s degree or higher, or a bachelor’s degree plus at least 5 years of relevant professional work experience. Foreign degrees must be recognized as equivalent to U.S. degrees (it is usually recommended to provide a credential evaluation report). If the industry typically requires a doctorate, the applicant should hold a Ph.D. For cases where a bachelor’s degree plus five years of experience is being used as a master’s equivalent, a letter from a current or former employer must verify the length and relevance of the experience.

• Individuals with Exceptional Ability: If the applicant does not hold an advanced degree, they can qualify by demonstrating exceptional ability in the sciences, arts, or business—meaning ability significantly above that ordinarily encountered. The applicant must meet at least three of the criteria set by USCIS (such as proof of relevant academic degrees, evidence of 10 years’ experience, licenses or certifications, high salary, membership in professional associations, awards or recognition for achievements, etc.). It must also be shown that the applicant’s expertise is significantly above average. The exceptional ability pathway is less common in NIW cases, but if pursued, substantial evidence must be provided to pass the USCIS’s two-step review (first meeting 3 required criteria, then passing a totality-of-evidence assessment).

Note: Applicants who only have a bachelor’s degree and do not have 5 years of experience are ineligible for EB-2 and therefore cannot apply for NIW. Applicants with non-four-year bachelor’s degrees (e.g., 3-year programs) should be aware that these are generally not considered equivalent to U.S. bachelor's degrees, and many EB-2/NIW applications have been denied due to inadequate educational credentials. It is therefore recommended that such applicants obtain a credential evaluation or pursue additional education before applying.

2. National Interest Waiver Criteria

Applicants must pass the “Three-Prong” Test. After meeting the basic EB-2 qualifications, NIW applicants must demonstrate that waiving the standard job offer and labor certification requirements is in the national interest of the United States. According to the Dhanasar precedent decision, applicants must meet all three of the following criteria:

(1) The Proposed Endeavor Has Substantial Merit and National Importance

This means the applicant must show that the project or endeavor they intend to pursue has high value and importance, and that its impact is not confined to a local level, but is beneficial to the nation as a whole (or at least across multiple regions or industries nationwide).

Examples include:

• In science or technology: the applicant’s research or innovation must be shown to have breakthrough significance, with potential to advance technology or public health.

• In business: the entrepreneurial venture or business plan must demonstrate potential for significant economic growth, job creation, or strategic importance in a key industry.

• In culture or education: the applicant’s work should have broad societal impact, such as enhancing social welfare or contributing to educational reform, not merely routine local teaching.

Note: “National importance” refers to the scope of impact within a field or across the country, not necessarily the physical or geographic coverage. For instance, a medical innovation piloted in one region may still qualify as nationally important if its technology can be widely adopted. Conversely, a purely local endeavor (e.g., standard classroom teaching without broader influence) typically does not meet the threshold.

(2) The Applicant Is Well Positioned to Advance the Proposed Endeavor

This prong focuses on the individual—their qualifications, experience, and readiness to carry out the proposed endeavor. USCIS officers will evaluate:

• Academic credentials

• Professional skills

• Past achievements

• Reputation in the field

• Project progress to date

• Industry support

Examples:

• A researcher may submit publications, citations, and patents to demonstrate achievement.

• An entrepreneur may provide business plans, letters of investment intent, and partnership agreements to prove the feasibility of executing the plan in the U.S.

• In all fields, expert letters of recommendation are crucial, validating the applicant’s abilities and prior contributions as predictive of future success.

Important: The applicant does not need to guarantee success, but must show they are well-positioned to pursue the endeavor. If the project is vague, lacks evidence, or if the applicant’s background does not match the project’s requirements (e.g., someone proposing to start a high-tech company with no relevant experience), this prong is unlikely to be satisfied.

(3) On Balance, It Would Benefit the U.S. to Waive the Job Offer and Labor Certification Requirements

This final prong is essentially a cost-benefit analysis: USCIS must conclude that bypassing the traditional labor certification and job offer process is in the best interest of the United States.

Key considerations include:

• Labor Certification is impractical: For example, the work is highly specialized, few U.S. workers can qualify, or the project is time-sensitive and cannot wait for a long hiring process.

• The applicant provides unique contributions even if others could fill the role: Their special skills or knowledge add value to the nation beyond what a typical worker can offer.

• The endeavor serves urgent national interests, such as national security, public health, or global technological competitiveness.

Examples:

• An entrepreneur creating a company that will generate significant employment or fill market gaps may not fit the traditional employer-sponsored model (as they are their own employer).

• A public health expert offering unique insights for pandemic response may be needed urgently—waiting for a labor certification would hinder public interest.

This prong should be supported with evidence, such as labor market data, government reports, or industry letters, to explain why skipping the PERM labor test is justified.

USCIS Discretion and the Totality-of-the-Circumstances Standard

Only after all three prongs are met will USCIS exercise its discretion to grant the NIW. Importantly, the NIW is adjudicated under a “totality of the circumstances” approach. Even if individual items have flaws, USCIS will consider the case holistically to determine whether the applicant is exceptional and benefits U.S. national interests.

Thus, applicants must present a coherent and persuasive package, forming a logical loop that proves the U.S. should “make an exception” and offer a green card.

Case Examples

Successful NIW cases typically include:

• Researchers in cutting-edge fields (e.g., AI, clean energy, biomedicine) with demonstrated impact and future potential

• Public health experts addressing major health issues, supported by government or institutional endorsements

• Entrepreneurs founding companies in critical sectors with investment, patents, or strong business plans and job creation potential

• Professionals in education or humanities whose projects have unique social or cultural value (e.g., promoting U.S.-China cultural exchange, preserving key intangible heritage)

However, routine occupations (e.g., standard software engineers or teachers) without extraordinary contributions often do not qualify under the “national interest” standard.

Applicants should address the three prongs with detailed evidence and third-party support to substantiate their claims.

(Disclaimer: The information published is for reference only and should not be construed as legal advice on any subject. All rights reserved. Reproduction requires permission from Allbelief Law Firm.)