EB-2 National Interest Waiver Attorney | Daniel L Carpenter Law LLC

What the category requires

You must first qualify for EB-2: an advanced degree or its equivalent, or exceptional ability in the sciences, arts, or business. That is the threshold, and it is not usually where cases are decided.

The waiver is then granted where the petitioner establishes three things under a framework the Administrative Appeals Office adopted in Matter of Dhanasar. Because you are asking to be excused from the labor market test, you file for yourself: no employer, no job offer, no PERM.

The three (3) prongs

One: Substantial merit and national importance.

The proposed endeavor must have substantial merit and national importance. Merit is rarely contested. National importance is, and it turns on the potential prospective impact of the work rather than on the geographic scope of your employer or the size of your team. Work that is genuinely valuable to one company frequently fails here.

Two: Well positioned to advance it.

You must be well positioned to advance the endeavor, judged on your education, skills, record of success in related efforts, a plan for future activities, and the interest of potential customers, users, investors, or other relevant entities. This prong is about you, and it is where most petitions are actually decided.

Three: On balance, beneficial to waive.

It must be beneficial to the United States to waive the job offer and labor certification requirements. Arguments here commonly include the impracticality of a labor certification for the work proposed and the urgency or value of the contribution relative to protecting the domestic labor market.

Prongs two (2) and three (3) are where cases are decided

Almost every petitioner can write a persuasive paragraph on merit. Far fewer can document that they specifically, rather than their field generally, are positioned to advance the endeavor, and fewer still address the balancing prong with anything beyond a restatement of prong one.

The most useful discipline is to write prong two first. If the evidence of your track record, your plan, and third-party interest is thin, the elegance of the prong one argument will not save the petition.

How this differs from EB-1A

EB-1A asks about acclaim: are you at the top of your field, and does the field recognize it? The national interest waiver asks about the work: is the endeavor nationally important, and are you positioned to advance it?

Those questions have different answers for the same person. A mid-career researcher whose work maps onto a stated national priority may have a strong waiver case and no EB-1A case at all. A widely acclaimed artist may have the opposite. Neither category is the junior version of the other.

EB-1A extraordinary ability

Whether this fits you

This is likely a fit if:

Your work maps clearly onto an articulated national priority or an identified national need; you have a documented record of advancing similar work; you can show interest from users, customers, funders, agencies, or collaborators outside your own organization; you have a concrete plan for what you will do next.

This is probably not a fit yet if:

The endeavor is described at the level of your field rather than your own work; your evidence of being well positioned is credentials without a track record; the national importance argument depends entirely on your employer's commercial success; you have no plan beyond continuing your current job.

Frequently Asked Questions About the EB-2 NIW

These are the questions I hear most often from people considering an NIW. If your situation isn’t covered here, I’m happy to talk it through.

My employer may not be able to sponsor me through PERM. Can I pursue a National Interest Waiver (NIW) on my own?

Yes. That's one of the main reasons the NIW category exists. It waives both the job offer and the PERM labor certification (Form ETA 9089), so you can file the petition yourself without an employer sponsor.

Your proposed work doesn't have to be with your current employer. But it does have to be specific and well documented, generally through reference letters, publications, patents, etc.

You still have to qualify. You need to meet the EB-2 baseline (an advanced degree or exceptional ability), and your proposed work must satisfy the three-part test USCIS applies to every NIW, known as the Dhanasar three-prong test, explained above.

If my NIW is denied, will it affect my current status?

Generally, no. If you're in the U.S. on an H-1B, O-1, L-1, or similar work visa, your underlying nonimmigrant status depends on that visa type and not on your NIW petition. A denied NIW petition doesn't cancel or revoke your nonimmigrant status.

This can be a bit more complicated if you filed your green card application (I-485) at the same time and are not maintaining your work visa/status. If the NIW is denied, the green card application is typically denied too. This resulting denial of the green card application will most likely place you out of status in the U.S.

If you're on a visa that doesn't allow immigrant intent, such as F-1, filing an NIW can also affect future visa applications. This is worth talking through before you file, not after.

I filed an NIW before and it was denied. Can I file again?

Yes. There's no limit on how many times you can file. But refiling the same petition usually gets the same result. Further, USCIS will have a record of the prior denial.

Therefore, it's important that you carefully review the prior denial notice. The notice will explain why the USCIS officer believes the criteria were not met. A new filing should address each of those points directly with stronger evidence or often a more clearly defined proposed endeavor.

Depending on the reasons for the denial, a motion or appeal may also be an option, but the deadlines are short.

Can I pursue an NIW at the same time as an EB-1A or PERM?

Yes. You can have more than one I-140 immigrant petition pending or approved at the same time, and each is decided on its own merits.

As a strategy, some individuals will choose to file an NIW alongside an EB-1A, or keep an NIW as a backup while an employer moves through the PERM (labor market test) process for them. If you're from a country with a long green card backlog, such as India or China, having multiple petitions may help you with holding onto the earliest priority date available to you. Keep in mind that if an I-140 is denied, USCIS won't refund the filing fees, which can add up quickly with premium processing.

The right combination depends on your background and your timeline, such as when you'll reach the six-year limit on your H-1B. Filing everything at once isn't always the best strategy.

What percentage of NIWs are approved?

USCIS publishes approval and denial counts for NIW petitions each quarter. For the first three quarters of fiscal year 2026 (October 2025 through June 2026), USCIS approved 9,238 NIW petitions and denied 9,585, an approval rate of about 49% of decided cases. The rate improved each quarter, reaching about 55% from April through June 2026.

Keep in mind that an overall approval rate says very little about any individual case. Approvals depend on how well the evidence supports each part of the NIW test, how clearly the proposed work is defined, and how the petition is presented to the USCIS officer.

Do I need a PhD to qualify for an NIW?

No. A PhD may help, but it isn't required.

To qualify for EB-2, you need either a master's degree (or foreign equivalent) or higher, a bachelor's degree (or foreign equivalent) plus at least five years of progressive experience in your field, or exceptional ability in your field.

Meeting that baseline is only the first step in the NIW analysis, though. More important is whether your proposed work satisfies the three-part Dhanasar test. Plenty of engineers, founders, and professionals without a PhD qualify, and plenty of PhD holders don't. Again, it comes down to the strength of the record, not the degree.

Let's talk about your matter.

Consultations are scheduled directly with me. If you're facing a filing deadline say so first and I'll prioritize it.

Schedule a consultation Send a message

[email protected] · (508) 591-0775 · Kingston, Massachusetts

EB-2 National Interest Waiver