Common Pitfalls in National Interest Waiver (NIW) Petitions

What is the National Interest Waiver (NIW)?

The National Interest Waiver (NIW) is a pathway within the EB-2 employment-based green card category. Normally, EB-2 applicants must have a permanent job offer and an approved labor certification (PERM) from the Department of Labor, proving no qualified U.S. workers are available. The NIW allows applicants to “waive” the job offer and labor certification if they can show their work benefits the United States broadly enough to be considered in the “national interest.” USCIS adjudicators apply the Matter of Dhanasar framework (2016), which requires proving three things:1. The proposed endeavor has substantial merit and national importance;2. The applicant is well positioned to advance that endeavor;3. On balance, it would benefit the U.S. to waive the normal job-offer and labor certification requirements. Approval rates for NIW petitions have shifted significantly over the last few years. While in FY 2022 approval rates were above 90%, they dropped to about 80% in FY 2023, and in FY 2024 fell sharply to around 43% (with many cases still pending). More recent FY 2025 data suggests stabilization in the 60–67% range. This trend underscores that NIW cases are receiving stricter scrutiny, particularly on the issue of national importance.

Pitfall 1: Assuming a STEM Degree Alone is Enough

A common misconception is that having a STEM degree automatically qualifies someone for an NIW. While STEM training is valuable, USCIS does not grant NIWs just because of a degree title. What matters is how the applicant’s specific endeavor creates broader impact — not just their academic background.

Pitfall 2: Relying on Labor Shortages

Another misunderstanding is that working in a field with a labor shortage guarantees approval. It does not. In a 2023 AAO decision, a pilot’s NIW petition was denied despite the well-documented national shortage of pilots. The AAO reasoned that one pilot alone would not solve the shortage and therefore his work was not of “national importance.” This illustrates the key lesson: shortages in the field do not equal national importance in your petition.

Pitfall 3: Believing the White House Critical Industry List is Enough

Applicants sometimes assume that being in a field listed on the White House’s “Critical and Emerging Technologies” list guarantees approval. While such a link can support a petition, USCIS still requires evidence that the individual’s work has measurable national impact — not just that the field itself is important.

Pitfall 4: Framing the Work Too Narrowly (Employer-Centric Arguments)

Many petitions fail because they read like a business case for why the applicant is valuable to their company. But USCIS is not asking whether your employer benefits — the question is whether your endeavor benefits the United States as a whole.

What Does Demonstrating “National Importance” Really Mean?

So what kind of evidence actually satisfies the “national importance” test? It comes down to showing influence, adoption, or reach beyond your immediate employer or local area. Some of the strongest examples include:- Federal grants or contracts (NIH, DOE, NSF, DOD, etc.)- National adoption of your methods, products, or standards- Intellectual property that is cited, licensed, or commercially implemented- Publications that are highly cited and shape the field in practice- Products or services sold or deployed nationwide- Job creation or economic development in high-unemployment or underserved areas. Each of these demonstrates that your work is not limited to a single employer or region, but instead contributes to U.S. interests on a broader scale.

The Takeaway

The EB-2 NIW is not about holding a STEM degree, working in a shortage industry, or pointing to a critical technologies list. It is about showing that your specific endeavor has national importance, that you are well-positioned to advance it, and that waiving the labor certification process benefits the U.S. overall.With approval rates tightening in recent years, avoiding these pitfalls and focusing on concrete evidence of national influence and adoption is more important than ever.