Understanding the criteria for a successful EB2-NIW petition can be complicated and overwhelming. However, knowing the Matter of Dhanasar can help you prepare and grasp the fundamental framework on which EB2-NIW applications are evaluated. Therefore, in this blog, we will explain the three prongs of the Dhanasar and how they are to be addressed when drafting a petition.
Dhanasar vs NYSDOT
Before the Dhanasar framework, up until 2016, the NYSDOT standard governed National Interest Waiver petitions which were known for their narrow and rigid standards. Beneficiaries had to prove their work had substantial intrinsic merit, national scope, and that bypassing labor certification was in the national interest.
This framework focused on existing work and traditional occupations instead of focusing on the proposed endeavor, uniqueness, and prospective potential of the beneficiary. The high burden of proof and strict criteria often excluded many qualified individuals, particularly in emerging fields or less traditional roles, from securing an NIW.
The Dhanasar Decision, with its broader and more flexible approach, has since made the EB-2 National Interest Waiver process more accessible and inclusive, making it easier for diverse professionals to qualify.
The Matter of Dhanasar and its Background
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) was actually the name of a specific case with a beneficiary named Dhanasar in 2016. This case and its outcome set a precedent as to how the qualifications of an EB-2 NIW beneficiary should be evaluated. Since then, the Dhanasar framework has set a standard for EB2-NIW cases with three main criteria. These criteria are:
1) Having a proposed endeavor with substantial merit and national importance
2) Being well-positioned to advance the proposed endeavor
3) The proposed endeavor being beneficial to the USA.
First Prong: Substantial Merit and National Importance
Let’s dive into the first criterion of the Dhanasar test with an example. Substantial merit refers to the inherent value and significance of the beneficiary’s proposed future endeavor. For instance, beneficiaries might want to contribute to an emerging and valuable field, such as a scientist working on renewable energy technology or a medical researcher developing a new treatment for a widespread disease. Both renewable energy and developing new treatments are inherently valuable fields, claiming to hold substantial merit.
Next, national importance means that the beneficiary’s work will be of considerable value across the United States and worldwide. For example, a new treatment for cancer would be immensely useful throughout the USA and even globally.The Economic Impact Analysis (EIA) drafted by our in-house writers at Raju Law plays an essential role in demonstrating that the beneficiary’s proposed endeavor has substantial merit and national importance. Although not formally a part of an EB2-NIW petition, the EIA provides crucial quantitative evidence, such as statistical data, highlighting social, economic, or financial gaps the endeavor can address.
For example, there are 1,958,310 new cancer cases and 609,820 cancer deaths in 2023 in the United States. In this case, an endeavor of inventing a new cancer treatment would greatly minimize cancer deaths. Hence, we can conclude that it fulfills the criterion of having national importance.
Second Prong: Well-Positioned to Advance the Proposed Endeavor
This prong focuses on the beneficiary’s ability and readiness to achieve their goals and endeavors. To justify the criterion, we, as the NIW team of Raju Law, ensure enough evidence is collected and incorporated into the beneficiary’s petition and strong arguments in the petitioning body. This includes the beneficiary’s necessary academic qualifications related to the field of their proposed goal, such as degrees, certificates, and training. Nonetheless, past work experiences, successful projects, research, and publications in reputed journals are also great sources to showcase the beneficiary’s expertise in the field. Notable accomplishments such as awards, honors, grants, and recognitions are also valued, highlighting the beneficiary’s capabilities.
Having a clear and detailed plan of how they will reach their goals is also appreciated. It is, in fact, a mandatory measure in the NIW process. One of the fundamental documents added to the petition is the beneficiary’s Proposed Endeavor Statement (PES), which outlines entirely a beneficiary’s goals in a step-by-step feasible order with every method, tool, and strategy they will utilize to achieve it.
Hence, religiously assembling the documents above and using those effectively in the petition would successfully fulfill the second prong of the Dhanasar standard for NIW.
Third Prong: Beneficial to the United States
To speak a little about the EB-2 visa category, it is an employment-based immigrant visa where a beneficiary must require a job offer and a labor certification from the Department of Labor to show there are no other qualified U.S. workers available for the position offered to the foreign workers. However, the National Interest Waiver (NIW) allows these requirements to be waived if they are able to present that their work is of national interest to the United States. That is where the Dhanasar framework comes into play.
The third prong aims to demonstrate the significant benefit of the beneficiary’s proposed endeavor so that, on balance, the advantage of waiving the job offer and the beneficiary’s labor certification outweighs the nation’s interest in protecting job positions for the locals. The benefits may significantly improve the fields of technology, healthcare, science, or the environment. An example may be an endeavor contributing to an urgent national need, such as the invention of vaccination during a pandemic, technological advancement towards extensive cybercrimes, or sustainable solutions during climate change that, in turn, can create more jobs.
Moreover, the third prong is also often justified with statistical data that emphasizes the current trends and urgencies in different sectors of the United States and concrete arguments showcasing similar projects, research, and publications of the beneficiary, demonstrating the impactful work they have already done. It may also talk about the beneficiary’s unique skills and compatibility related to the critical field of work. Hence, this would justify the third prong of Dhanasar.
In summary, the Dhanasar’s three-pronged tests have been remarkable and flexible in setting a benchmark for EB2-NIW cases. The framework encourages a great number of talented individuals to apply for the NIW visa each year, enriching the United States with global talents to support national interests and foster innovation and development across diverse sectors.
