In 2016, the USCIS Administrative Appeals Office made changes to the eligibility criteria for NIW visas under the EB-2 category. This was done through a ruling known as Matter of Dhanasar, which established a three-pronged test that applicants must pass to qualify for the visa. The first criterion is that the proposed endeavor of the applicant must have significant merit and national importance. Secondly, the applicant must demonstrate that they are well-suited to advance their proposed endeavor. Finally, the applicant must prove that waiving the job offer and labor certification requirements of the EB-2 category would benefit the United States.

To determine whether a proposed endeavor is substantial and of national importance, USCIS does not restrict applications to specific fields such as science or technology. All foreign nationals, regardless of their profession, may apply as long as their endeavors would benefit the United States. USCIS evaluates this criterion by assessing the potential impact of the applicant’s proposed endeavor and examining the significance of the problems that the applicant may address through it.

The second criterion under the Dhanasar standards involves the evaluation of the applicant’s qualifications and ability to advance their proposed endeavor. USCIS considers various factors to determine whether the applicant is well-positioned for success, including their education, skills, knowledge, and track record of achievements. Additionally, USCIS may also examine the applicant’s future plans, progress made towards achieving their goals, and the interest of potential investors, customers, or users. While the applicant does not need to prove that their endeavor will ultimately succeed, they must demonstrate that they have a strong likelihood of success by presenting a well-developed plan, such as a business plan with financial projections.

Thirdly, USCIS will assess whether the contributions of the applicant would benefit the United States, even if there are qualified American workers available, and whether the national interest is important enough to bypass the labor certification process. USCIS adjudicators must weigh the national interest in requiring labor certifications to protect American workers against the benefits that the applicant could bring to the United States. Factors that could be considered include whether it is impractical to obtain a job offer or labor certification due to the applicant’s qualifications or proposed endeavor, whether the United States would benefit from the applicant’s contributions, and whether the national interest in the applicant’s contributions is “sufficiently urgent” to justify bypassing a labor certification. Applicants can often demonstrate this by showing that they possess unique and exceptional qualifications.

In addition to fulflling the three-prong test, an applicant must also prove that they belong to the professions that hold advanced degrees, or they are individuals with exceptional abilities in sciences, arts, or business.