📌 Under Matter of Dhanasar, satisfying the first and second prongs is often the key to NIW approval: the petitioner must demonstrate that their proposed endeavor has substantial merit and national importance, and that they are well-positioned to advance it. Rather than merely submitting supporting documents, an NIW petition requires comprehensive storytelling and strategic planning, making it essential to work with experienced attorneys.
Understanding NIW & EB-1A
There are two primary pathways to obtaining U.S. permanent residency: family-sponsored immigration and employment-based immigration. The employment-based route—commonly referred to as “EB”—is divided into five preference categories, from EB-1 through EB-5.
As the term “employment-based” suggests, most EB categories (with the exception of EB-5 investor visas) generally require a permanent job offer from a U.S. employer. However, two notable exceptions—the National Interest Waiver (NIW) and the EB-1A (Extraordinary Ability) category—allow qualified individuals to self-petition for a green card without the need of a job offer or employer sponsorship.
NIW Eligibility Requirements
The National Interest Waiver (NIW), under the EB-2 immigrant visa category, is available to individuals with an advanced degree, exceptional ability, or a bachelor’s degree plus five years of progressive experience. Unlike most employment-based categories, NIW applicants do not need a permanent job offer or labor certification but must demonstrate that their proposed endeavor holds substantial merit and national importance to the United States.
The NIW has no restrictions on academic disciplines or professional fields; applicants from STEM, arts, business, healthcare, and other areas may qualify. Following the AAO’s 2016 precedent decision (Matter of Dhanasar), USCIS adopted a more flexible evaluation standard, enabling a broader range of professionals to pursue this path to permanent residency through NIW
3-Prong Test under Matter of Dhanasar
Substantial Merit and National Importance – focus on specific endeavor
“무엇”을 해서 미국의 국익에 도움을 줄 것인가에 대한 증명
Well-positioned to advance the proposed endeavor – focus on the applicant
지원자가 그 “무엇” 을 할 “능력”이 되는가에 대한 증명
Beneficial to the U.S. to waive the job offer and labor certification requirements
앞의 두가지 요건 충족으로 미국 고용주가 필요없음을 증명
Supporting Evidence for NIW
- Citation records for published research papers
- Number of patents held and evidence of commercialization
- Letters of recommendation
- Professional licenses or certifications in the area of expertise
- Membership in professional associations or organizations
- Awards or honors received for excellence in the field
- Media coverage, including newspaper articles or television appearances
- Documented history of successful entrepreneurial or business ventures
- Evidence of high salary or compensation relative to others in the field
- Any other documentation demonstrating exceptional ability or national impact
📌 These supporting documents are not absolute requirements. Applicants without publications, patents, or specific licenses may still qualify by presenting other credible evidence of their expertise. Many NIW petitions have been approved based on a strong combination of alternative documentation
EB-1A Eligibility Requirements
EB-1A is a subcategory of the EB-1 employment-based green card reserved for individuals with extraordinary ability.
The standard of “extraordinary ability” under the EB-1A category is more stringent than the “exceptional ability” standard required for NIW. This is because U.S. immigration law specifically defines EB-1A eligibility as applying only to a “small percentage of individuals who have risen to the very top of their field of endeavor.”
However, unlike the NIW, the EB-1A does not require an advanced degree or five years of progressive experience. Furthermore, applying for EB-1A does not negatively impact an NIW petition if already filed as the two petitions are evaluated independently. For applicants who meet the NIW requirements and also possess a record of sustained national or international acclaim, pursuing both EB-1A and NIW concurrently may be a strategic option.
