EB-2 National Interest Waiver: Requirements and Evidence

Immigration · 28 September 2026

The EB-2 national interest waiver (NIW) lets a qualified professional seek a green card without a job offer and without the labor certification most employment-based cases need. It is also widely misunderstood. It is not a reward for an impressive résumé, and since January 2025 USCIS has been explicit about the order in which it decides these cases. This guide follows USCIS’s own framework as it stands on October 21, 2026.

What a national interest waiver is

An NIW is a request made inside an EB-2 immigrant petition, which is filed on Form I-140. Normally a U.S. employer files that petition after completing labor certification through the Department of Labor (the PERM process). With a national interest waiver, the job offer and the labor certification are waived, so you may file the petition for yourself. According to USCIS, the petition must still include a completed Form ETA-9089 Appendix A and a signed ETA-9089 Final Determination.

Step one: you must qualify for EB-2

USCIS decides an NIW in two stages, and the first is the one people skip. In a January 2025 policy alert (PA-2025-03), USCIS made explicit that a petitioner must first show the person qualifies for the underlying EB-2 classification. If not, the Policy Manual says the petition is statutorily ineligible for the waiver, however strong the rest of the case is. There are two ways in:

• Advanced degree: a U.S. academic or professional degree above a bachelor’s, or a foreign equivalent. A U.S. bachelor’s degree (or foreign equivalent) followed by at least five years of progressive experience in the specialty counts as the equivalent of a master’s.
• Exceptional ability: in USCIS’s definition, a degree of skill significantly above what is ordinarily encountered in the sciences, arts or business. USCIS requires evidence meeting at least three of six criteria, and accepts other comparable evidence where the criteria do not readily apply.

The six exceptional-ability criteria are an academic record in the area of ability; letters from current or former employers documenting at least ten years of full-time experience in the occupation; a license or certification for the profession; pay that reflects the ability; membership in professional associations; and recognition of achievements by peers, government bodies or professional or business organizations.

Qualifying for EB-2 does not earn the waiver. It only opens the door to the second stage.

Step two: the three Dhanasar prongs

The test for the waiver comes from Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), and USCIS applies it through its Policy Manual. USCIS may grant the waiver where:

• the proposed endeavor has both substantial merit and national importance;
• the person is well positioned to advance the proposed endeavor; and
• on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

All three must be met. The sections below take them one at a time, using the factors USCIS itself lists.

Prong one: substantial merit and national importance

Merit can come from business, entrepreneurship, science, technology, culture, health or education. National importance turns on the nature of the endeavor and its broader implications. USCIS tells its officers to focus on the nature of the proposed endeavor rather than only on its geographic breadth, so local work is not ruled out simply because it is local.

Two limits matter. Benefits to a single employer are not enough, even an employer with a national footprint. And for a start-up, general claims about job creation or the importance of an industry do not establish national importance; the petition has to show in detail how this specific endeavor qualifies. USCIS does recognize the importance of progress in STEM fields, and an advanced STEM degree, especially a Ph.D., can weigh in favor.

Prong two: well positioned to advance the endeavor

This prong looks forward and uses your record as evidence. The factors in the Policy Manual include your education, skills, knowledge and record of success in related or similar efforts; a plan for future activities that you helped develop; progress toward the endeavor so far; and interest from potential customers, users, investors or other relevant parties. Patents, citation history, investment and letters from government agencies can all be relevant.

It is not a requirement to prove the endeavor will succeed. It is a requirement to show that the plan is credible and that you are the person to carry it out.

Prong three: why waive the usual process

The third prong asks whether, on balance, the United States benefits from letting you bypass the job offer and labor certification. The factors USCIS weighs include whether, given your qualifications or the endeavor, it would be impractical to secure a job offer or obtain a labor certification; whether the national interest in your contributions is sufficiently urgent; and whether the United States would benefit even if other qualified U.S. workers are available.

One thing does not work on its own: evidence of a national labor shortage in your occupation does not, by itself, satisfy this prong.

What evidence supports an EB-2 NIW petition?

Evidence works when it is tied to a specific requirement. A stack of documents that all prove the same thing, that you are accomplished, leaves the other prongs unargued. A practical way to organize it:

• EB-2 eligibility: degrees and transcripts, with credential evaluations for foreign degrees; employment letters documenting progressive experience; or, for exceptional ability, the evidence for at least three of the six criteria.
• Merit and national importance: a precise description of the endeavor, plus independent material showing why that kind of work matters beyond one employer, such as government reports, industry data or the policy context of the field.
• Well positioned: your record in this area (publications and citations, patents, grants, contracts, product or program results), the plan itself, the progress made so far, and evidence of interest from users, customers, investors or agencies.
• The balance: a reasoned explanation, grounded in your facts, of why a job offer or labor certification would be impractical or would not serve the national interest in your case.

Letters help most when they come from people who know the field and explain concretely what you did, why it mattered and how it bears on the proposed endeavor. Letters that only praise you or restate your résumé add little.

Describe an endeavor, not an occupation

The Policy Manual is direct about this: the term “endeavor” is more specific than the general occupation, and the petition should describe the specific projects and goals. “I will work as a software engineer” or “I will practice medicine” describes an occupation. A defined program, product, line of research or service, with the people it will reach and why that matters, describes an endeavor.

What happens after approval

An approved I-140 is not a green card. The next step is either adjustment of status inside the United States (Form I-485) or an immigrant visa through a U.S. consulate, and both depend on a visa number being available for your priority date, as published in the State Department’s monthly Visa Bulletin. Your spouse and unmarried children under 21 may be able to immigrate with you, in E-21 and E-22 status.

NIW or PERM?

If an employer is willing to sponsor you, the PERM labor certification route remains open, and USCIS says a person is not precluded from seeking a national interest waiver because an employer has applied, or could apply, for labor certification. Which route fits depends on your credentials, your plans and your employer. Our employment-based immigration page covers the other routes.

How Michelotti & Associates can help

Michelotti & Associates helps professionals in the Chicago area assess whether their record fits EB-2 and the national interest waiver, and prepare petitions organized around USCIS’s framework, from its office in Oak Brook. Call 630.928.0100 to arrange a consultation.

This article is general information about the law as of October 21, 2026, not legal advice about anyone’s case.

This article is general information, not legal advice about your situation. Reading it does not create an attorney–client relationship.