Chicago Immigration Lawyer Blog
A recent Administrative Appeals Office decision offers a useful reminder for people pursuing an EB-2 National Interest Waiver. USCIS may consider many kinds of evidence, but it cannot turn helpful examples into mandatory requirements that do not appear in the governing legal standard.
In In re 43786082, the AAO reviewed the denial of an NIW petition filed by a petitioner developing an artificial intelligence platform for preventive health care. The petitioner described the project as a tool for early risk identification, chronic disease prevention, and patient-centered care. USCIS agreed that the proposed work had substantial merit but found the evidence insufficient to establish national importance, that the petitioner was well positioned to advance the project, or that waiving the job offer requirement would benefit the United States.
The AAO withdrew the denial and remanded the case for a new decision. It did not approve the NIW petition or decide that the petitioner ultimately qualifies. In re 43786082, 2026 WL 3333511 (DHS Aug. 17, 2026). The decision is a nonprecedent decision, so it does not bind USCIS in other cases. It still provides a practical example of how the AAO applies the controlling framework.
The three-part NIW framework
Under Matter of Dhanasar, a petitioner seeking an NIW must first qualify for EB-2 classification. The petitioner must then establish that:
- The proposed endeavor has substantial merit and national importance.
- The petitioner is well positioned to advance the proposed endeavor.
- On balance, waiving the job offer and labor certification requirements would benefit the United States.
The petitioner must prove eligibility by a preponderance of the evidence. Matter of Dhanasar, 26 I&N Dec. 884, 889–91 (AAO 2016).
When examples become improper requirements
The denial in In re 43786082 listed evidence that, in the agency’s view, the petitioner would have needed. For national importance, the decision pointed to items such as adoption across multiple states, federal agency endorsement, nationwide contracts, and economic modeling. For the second prong, it identified items such as government grants, patents with national adoption, influential publications, long-term contracts, and expert letters addressing whether the petitioner’s expertise could be replaced.
The AAO explained that these forms of evidence may help prove a case, but Dhanasar does not require them. Petitioners may use different types of relevant evidence to meet their burden. The proper question is whether the evidence, considered under the correct legal standard, shows that the petitioner satisfies each prong.
That distinction matters. An officer may evaluate the strength and relevance of the evidence. But a denial should not treat a particular document or outcome—such as a federal endorsement, nationwide adoption, or patent—as a required element when the legal test does not require it.
National importance looks to potential impact
The AAO also rejected the denial’s suggestion that potential deployment of the health platform across Federally Qualified Health Centers was speculative because the record lacked proof of systemwide adoption.
Under Dhanasar, national importance turns on the proposed endeavor’s potential prospective impact. A petitioner does not necessarily need to prove that a project already operates nationwide. The petitioner still must explain the specific work and support the claimed future impact with credible evidence. But the absence of completed nationwide adoption does not, by itself, defeat the claim.
This is not a rule that broad promises or ambitious plans suffice. It is a reminder to evaluate the proposed endeavor’s likely impact under Dhanasar, rather than demanding that the petitioner prove the future has already happened.
The balancing prong does not require proof of national harm
The AAO found another legal error in the denial’s statement that the petitioner had to show “clear national harm” if the labor certification process applied.
Dhanasar expressly rejected a requirement to prove harm to the national interest or to compare the petitioner against U.S. workers. The third prong instead asks whether, on balance, the United States would benefit from waiving the job offer and labor certification requirements. Relevant considerations may include the nature of the petitioner’s qualifications or endeavor, the benefit of the petitioner’s contributions even if qualified U.S. workers are available, and whether the national interest in those contributions is sufficiently urgent.
What We Take from This Decision
An NIW petition must connect the petitioner’s specific proposed work to evidence showing its prospective impact, the petitioner’s ability to advance it, and the benefit of waiving the job offer requirement. The AAO’s decision does not guarantee approval for AI, health care, or technology projects. It does reinforce that USCIS must apply the three Dhanasar prongs as written and explain why the submitted evidence falls short.
The practical lesson is to build a case around the actual endeavor and the evidence available for that petitioner. Funding, patents, publications, contracts, and expert letters may be useful. They are not a universal checklist.
Zneimer & Zneimer P.C. is an experienced immigration law firm that analyzes NIW petitions under the governing legal framework and develops case-specific evidence for each prong. Contact us if you intend to file a NIW for evaluation of your endeavor.