The legal test has not changed since 2016. How USCIS applies it changed sharply in January 2025, and the approval data since is worth seeing before you file.
The EB-2 National Interest Waiver is the route that lets a qualifying person petition for a green card without an employer sponsor and without a labor certification. You file for yourself.
That is what makes it attractive, and it is why USCIS scrutinises it.
The NIW is a waiver layered on top of EB-2 classification, not a separate category. You must first be either:
Only then does the waiver question arise.
These come from Matter of Dhanasar (2016), quoted here as USCIS states them in the Policy Manual. USCIS may grant a National Interest Waiver if you demonstrate that:
All three must be satisfied. Failing any one ends it.
On 15 January 2025 USCIS updated Policy Manual Volume 6, Part F, Chapter 5, applying immediately to pending and newly filed petitions. It did not change the Dhanasar legal standard. It changed how the standard is applied, in four ways that matter:
The endeavour must match your qualifications. Your advanced degree or exceptional ability must be relevant to the specific endeavour you propose. A computer science PhD proposing an endeavour in agricultural policy now has a threshold problem it would not have had before.
National importance means the endeavour, not the field. Expanded guidance and worked examples make clear that USCIS assesses the particular endeavour you describe — not the general importance of the industry you work in. "AI is important to America" is not an argument about you.
Recommendation letters carry less weight. The update set out how USCIS weighs letters against hard documentary evidence, and the practical effect has been to downgrade letters relative to objective proof.
Entrepreneurs got expanded — and stricter — treatment. Generic claims of economic benefit are insufficient. A credible, specific business plan is expected.
Status as at September 2026: the guidance still stands. We found no source indicating rescission or amendment.
One firm's analysis of USCIS I-140 data puts NIW approval rates at 95.7% before 2025, 55.2% in FY2025, and 45.5% in the first half of FY2026.
Treat those numbers with care: the underlying counts are USCIS's, but the rates are calculated by the firm, not published by USCIS. The direction is nonetheless unambiguous, and it is a reason to prepare a stronger petition than the pre-2025 guidance would have required.
USCIS publishes no closed list. Drawing on the guidance and practitioner commentary:
Prong 1 — substantial merit and national importance. Evidence connecting your specific endeavour to national-level impact: scientific advancement, public health, national security, critical infrastructure, technological innovation, or economic development in an under-served region.
Prong 2 — well positioned to advance it. Objective documentary evidence. Publications and citation records. Patents. Grant or venture funding. Commercialisation. Evidence that others have adopted your work. Outcomes of past projects. For entrepreneurs, a detailed and credible business plan.
Prong 3 — on balance beneficial to waive. Why requiring a job offer and labor certification would impede the work: urgency, the need to work flexibly across employers or self-employed, and the argument that the national benefit accrues regardless of whether qualified US workers are available.
| Item | Fee |
|---|---|
| Form I-140 | $715 |
| Asylum Program Fee — self-petitioner (small employer rate) | $300 |
| Typical NIW total | $1,015 |
The Asylum Program Fee is $600 for a standard petitioner, $300 for a small employer of 25 or fewer full-time employees, and $0 for a 501(c)(3) nonprofit. USCIS directs self-petitioners with 25 or fewer — including zero — employees to the small employer rate.
Premium processing for an I-140 costs $2,965 from 1 March 2026. Note that for E21 NIW petitions the timeframe is 45 business days, not the 15 that applies to most I-140 classifications.
Filing an approved I-140 is not the end. You then wait for a visa number, governed by the monthly Visa Bulletin.
As at the September 2026 bulletin:
| EB-2 | Final Action | Dates for Filing |
|---|---|---|
| All areas except below | Current | Current |
| China-mainland | 1 September 2021 | 1 January 2022 |
| India | Unavailable | 15 January 2015 |
| Mexico, Philippines | Current | Current |
India EB-2 shows U — no visas available. The bulletin itself warns that demand "may make it necessary to retrogress the final action date or make the category unavailable" for other areas too.
Check the current bulletin at travel.state.gov rather than relying on any fixed table, including this one.