Every national interest waiver filed today is adjudicated under a decision issued on 27 December 2016. Matter of Dhanasar threw out the test that had governed since 1998 and replaced it with three prongs, and the petitioner who brought it won.
- Cited as 26 I&N Dec. 884 (AAO 2016), Interim Decision #3882
- Decided December 27, 2016 by the Administrative Appeals Office
- Vacated Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (1998)
- Three prongs replace the previous framework
- Outcome: the appeal was sustained and the petition approved
What a precedent decision is
Most AAO decisions are non-precedent: they resolve one appeal and bind nobody else. A small number are designated as precedent, and those are different. Under 8 CFR 103.3(c), designated decisions "are to serve as precedents in all proceedings involving the same issue(s)" and, "Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act."
Dhanasar is one of those. That is why it governs adjudications rather than merely informing them, and it is the difference between citing Dhanasar and citing an unpublished AAO decision with attractive facts. How AAO decisions work covers the distinction.
The holding
The test, in the decision's own words:
"USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements." Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
Three prongs, all of which must be met. The NIW three prongs works through what each one asks for in practice, and defining the proposed endeavour covers the drafting problem that prong one creates.
What it replaced, and why
The framework before Dhanasar came from Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998), generally shortened to NYSDOT. Dhanasar vacated it.
The practical objection to the old test was that it required a petitioner to show that the national benefit they offered would be greater than what a qualified US worker with a labour certification could provide. That comparison was awkward for anyone whose contribution was not tied to a specific job at a specific employer, and close to unworkable for entrepreneurs and independent researchers.
The new framework replaces that comparison with a balancing question. Among the factors the decision says USCIS may evaluate in performing the analysis is:
"whether, in light of the nature of the foreign national's qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification" Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
and, separately, "whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions".
Read those together and you can see the shift. The old test asked you to beat a hypothetical American worker. The new one accepts that qualified American workers may exist and asks whether the country still gains by waiving the process.
The decision situates this in the statutory design, noting that the benefits inherent in the labour certification process can be outweighed by other factors also deemed to be in the national interest, and that Congress entrusted the Secretary to balance those interests in individual adjudications.
Who the petitioner was
Dhanasar was a researcher and educator in aerospace engineering. The Director of the Texas Service Center had denied the petition under the old framework, and the appeal reached the AAO.
The conclusion is worth reading in full because it shows the three prongs being applied to a real record:
"The record demonstrates by a preponderance of the evidence that: (1) the petitioner's research in aerospace engineering has both substantial merit and national importance; (2) the petitioner is well positioned to advance his research; and (3) on balance, it is beneficial to the United States to waive the requirements of a job offer and thus of a labor certification." Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
The order: "The appeal is sustained and the petition is approved."
Two things in that passage are easy to skim past. The standard is the preponderance of the evidence, which is the ordinary civil standard rather than anything heightened, as the preponderance standard explains. And the waiver is discretionary: the decision says the petitioner "has established eligibility for and otherwise merits a national interest waiver as a matter of discretion". Meeting the prongs and being granted the waiver are stated as related but separate findings.
The decision also restates where the burden sits, citing section 291 of the Act: it is the petitioner's burden to establish eligibility for the benefit sought.
What it does not do
Dhanasar changed the test. It did not lower the bar in any measurable way, and reading it as an easing of standards is a common and expensive mistake.
Prong one still requires national importance, which is about the potential prospective impact of the endeavour rather than the importance of the field in the abstract. Prong two still requires evidence that this particular person is positioned to advance it. Prong three is a balancing exercise with no fixed answer.
What genuinely changed is that the framework now accommodates people whose work does not fit a job description: founders, independent researchers, people building something that does not yet have an employer attached to it. NIW for STEM professionals and entrepreneurs covers where USCIS has since given more specific guidance.
Whether your record satisfies the three prongs, and whether the NIW or an EB-1 classification is the better route for you, is a judgement to make with your attorney. The three EB-1 classifications compared sets out the alternatives.
Sources
All accessed 1 September 2026.
- Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), Interim Decision #3882, Executive Office for Immigration Review. All quotations above are from the decision.
- 8 CFR 103.3(c), eCFR. Precedent decisions and their binding effect, quoted verbatim above.
- USCIS Policy Manual, Volume 6, Part F, Chapter 5. The agency's current national interest waiver guidance, which implements Dhanasar.
- 8 CFR 204.5(k), eCFR. The second preference classification the waiver attaches to.
This article describes a decision in general terms. It is not a substitute for advice from your attorney about your own case.
Frequently asked questions
What is Matter of Dhanasar?
It is a 2016 precedent decision of the Administrative Appeals Office, cited as 26 I&N Dec. 884 (AAO 2016), Interim Decision #3882, decided December 27, 2016. It sets the framework for national interest waiver adjudications.
What are the three prongs?
USCIS may grant a national interest waiver if the petitioner demonstrates that the proposed endeavour has both substantial merit and national importance, that he or she is well positioned to advance it, and that on balance it would be beneficial to the United States to waive the job offer and labour certification requirements.
What did Dhanasar replace?
It vacated Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998), the framework that had governed national interest waivers since 1998.
Did the petitioner win?
Yes. The order reads that the appeal is sustained and the petition is approved. The petitioner was a researcher and educator in aerospace engineering.
What standard of proof applies?
The decision states that the record demonstrates the three prongs by a preponderance of the evidence, and notes that in visa petition proceedings it is the petitioner's burden to establish eligibility.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.