EB-2 Visa Attorney in Washington, DC

The National Interest Waiver Standard Under Matter of Dhanasar

USCIS evaluates national interest waiver petitions under the three-prong framework established by Matter of Dhanasar, a 2016 Administrative Appeals Office decision that replaced the earlier NYSDOT standard. 

Under Dhanasar, a petitioner must satisfy all three prongs: 

• The proposed endeavor has substantial merit and national importance
• The petitioner is well positioned to advance that endeavor
• It would benefit the United States to waive the job offer and labor certification requirements

Since the NIW removes the employer sponsorship requirement, a qualifying professional may file Form I-140 independently, without waiting for an employer to initiate the process.

The Standard EB-2 Filing Path: PERM Labor Certification & Form I-140

For EB-2 petitions outside the national interest waiver category, the employer must first obtain an approved labor certification through the Program Electronic Review Management system, known as PERM, administered by the U.S. Department of Labor. The PERM process requires the employer to demonstrate that no qualified, available U.S. worker was found for the position before sponsoring a foreign national. Once labor certification is approved, the employer files Form I-140 with USCIS on the employee’s behalf.

For eligible non-NIW EB-2 filings, premium processing is available through Form I-907, which commits USCIS to act on the petition within 15 calendar days. We advise clients on whether that timeline trade-off makes sense given their priority date situation and overall case strategy.

Priority Dates, Per-Country Caps, & the Visa Bulletin

Employment-based immigrant visas are subject to annual numerical limits. The EB-2 category receives 28.6 percent of the worldwide employment-based allocation, and a per-country cap of 7 percent applies to nationals of any single foreign state. When demand from a particular country consistently exceeds that cap, applicants born there face longer waits before their priority date becomes current and they can move forward to adjustment of status or consular processing.

The State Department publishes the Visa Bulletin monthly, and tracking it is essential for managing timeline expectations. Priority date movement can shift in either direction, and strategy decisions around premium processing, concurrent filing, and job changes all intersect with where a client’s priority date stands relative to current cutoff dates.