Drafting guide
Matter of Dhanasar: what a National Interest Waiver record has to do.
Every practitioner can recite the three prongs. The useful question is where petitions actually fail — and it is overwhelmingly Prong 2, almost never because the beneficiary is unqualified.
- Citation
- 26 I&N Dec. 884
- Decided
- AAO 2016
- Prongs
- 3
- Category RFE rate
- 28.4%
Why it replaced NYSDOT
Before 2016, National Interest Waiver petitions were adjudicated under Matter of New York State Department of Transportation, whose third prong asked petitioners to prove a negative — that the national interest would be adversely affected if labor certification were required. The AAO found that framework unduly restrictive and, in Matter of Dhanasar, vacated it.
The replacement is more permissive in principle and more demanding in practice, because each prong now asks a distinct question and evidence for one does not carry to another. That separation is what most records fail to respect.
The three prongs, as stated
Prong 1
The proposed endeavour has substantial merit and national importance
26 I&N Dec. 884, 889
Prong 2
The beneficiary is well positioned to advance the proposed endeavour
26 I&N Dec. 884, 890
Prong 3
On balance, it would be beneficial to waive the job offer and labor certification
26 I&N Dec. 884, 890–91
Each is evaluated on a preponderance of the evidence standard — the claim must be shown to be probably true, per Matter of Chawathe.
The proposed endeavour has substantial merit and national importance
26 I&N Dec. 884, 889
Merit can be established in business, entrepreneurialism, science, technology, culture, health or education. National importance turns on the potential prospective impact of the endeavour, not on the geographic scope of the beneficiary's current employment. Dhanasar is explicit that an endeavour with national or global implications in a particular field may satisfy this even where the immediate work is local.
Do
- Define a specific endeavour, not an occupation. 'Improving grid-scale storage cycle life through solid-state electrolyte interface engineering' beats 'materials science research'.
- Establish importance through published policy attention — agency reports, funding priorities, legislative programmes in the field.
- Show prospective impact rather than describing past employment.
Avoid
- Do not conflate the beneficiary's employer's importance with the endeavour's.
- Do not rely on the field's general prestige without connecting it to a defined endeavour.
- Do not spend the section on credentials — those belong to Prong 2.
The beneficiary is well positioned to advance the proposed endeavour
26 I&N Dec. 884, 890
This is the prong that decides most petitions. Dhanasar directs consideration of the beneficiary's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the endeavour; and the interest of potential customers, users, investors or other relevant entities. Every one of those factors is about the individual.
Do
- Argue a causal chain: past achievement in this endeavour, evidence that others adopted the work, and a plausible account of what happens next.
- Give citation evidence context — field baselines, capture date, self-citation treatment, and which specific papers built on the work.
- Build the expert letter roster deliberately: people who used the work and have no co-authorship, institutional or funding relationship.
- Include a model or plan for future activity, with funding, contracts or institutional commitment where it exists.
Avoid
- Do not substitute the field's importance for the beneficiary's positioning — that is Prong 1 evidence and it does not carry over.
- Do not present co-authors or same-institution colleagues as independent experts.
- Do not submit citation counts alone as proof of major influence.
- Do not send visibly templated letters — adjudicators read them side by side.
On balance, it would be beneficial to waive the job offer and labor certification
26 I&N Dec. 884, 890–91
Dhanasar lists factors including whether it would be impractical for the beneficiary to secure a job offer or for the petitioner to obtain a labor certification; whether the United States would benefit from the contributions even assuming other qualified workers are available; and whether the national interest in the contributions is sufficiently urgent to warrant forgoing the labor certification process.
Do
- Address impracticality specifically — self-employment, entrepreneurial endeavour, or a field where the endeavour does not map to a single position.
- Argue urgency with reference to published demand or policy attention in the field.
- Acknowledge the protective purpose of labor certification and explain why the balance still favours a waiver.
Avoid
- Do not treat Prong 3 as a formality — a thin Prong 3 invites a request even where 1 and 2 are strong.
- Do not argue simply that the beneficiary is highly qualified; that is not the question this prong asks.
Coverage in practice
What the prong map looks like on a real matter.
Switch to EB-2 NIW below. Coverage scoring is a completeness signal, not a legal opinion — but a prong at 78% is worth another expert letter before you file.
Criteria pack
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
All three prongs must be independently satisfied
Prong 1 — Substantial merit & national importance
Dhanasar at 889 · 5 exhibits · pp. 35–121
Substantiated
Prong 2 — Well positioned to advance the endeavour
Dhanasar at 890 · 5 exhibits · pp. 122–268
Substantiated
Prong 3 — Beneficial to waive the job offer
Dhanasar at 890–91 · 3 exhibits · pp. 269–312
Substantiated
Every criterion carries mapped evidence
One more thing
A perfect Prong 2 argument still fails if the citation does not resolve.
An adjudicator spends fifteen to twenty minutes on an initial filing. Every assertion in the brief has to land on a page they can find. “Adopted by three national laboratories” is a strong sentence only if Exhibit 3.4 at pages 167 to 214 genuinely contains that evidence.
How citations are generatedRelated reading
Navigating Matter of Dhanasar in 2026: what adjudicators actually look for in Prong 2
Document checklist
EB-2 NIW — 20 documents across 5 evidence groups
Criteria and mapping
EB-2 NIW criteria, RFE triggers and assembly time
Adjudication data
2026 USCIS RFE trends hub
The companion framework
Kazarian two-step guide for EB-1A and O-1A
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