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Navigating the Changing Landscape of EB-2 NIW Visas: Rising Denials, Changing Adjudication, and Perspectives from Leading Immigration Attorneys

Updated: Jul 1

Zachary Johnson, PhD Founder of ProfVal.com

Federico Hurtado, LLB Law, Advisor at ProfVal


Summary

  • USCIS is has been applying stricter scrutiny to EB-2 NIW petitions. This shift was most pronounced beginning Q1/Q2 2024.

  • Denial rates are rising, so attorneys stress tailoring to meet evolving standards (Prongs 1 & 3). We have summarized some of the perspectives of leading attorneys.

  • ProfVal has enhanced its support to address these changes.

  • Nothing in this article should be construed as legal advice


Disclaimer about attorneys referenced:  The perspectives referenced in this document reflect insights informed by public commentary and, in some instances, direct input from respected immigration attorneys, including:

Statements have been paraphrased or adapted from publicly available sources for clarity and consistency.  These insights are included solely to provide context and help inform understanding of complex immigration topics. Nothing in this document should be construed as legal advice, nor do the referenced statements represent official positions or legal interpretations by ProfVal or any attorney named. We make no guarantees of the accuracy or completeness of the information provided.  The inclusion of commentary from individual attorneys or firms does not imply any formal affiliation, partnership, or endorsement—either by ProfVal of the attorneys, or by the attorneys of ProfVal.


The EB-2 NIW is an important pathway for high skill professionals seeking green cards. Those who work with the EB-2 NIW are familiar with the Matter of Dhanasar (2016), which introduced a three-prong test for assessing EB-2 National Interest Waiver (NIW) petitions. Dhanasar, and subsequent policy changes by the Biden Administration and the USCIS policy manual, specifically in STEM endeavors, opened the EB-2 NIW to professionals in a wide range of fields.


However, changes in adjudication trends since the beginning of fiscal year 2024 have reshaped the EB-2 NIW adjudication landscape. Petitions that, in 2022 - 2024, would have likely been approved, now face greater uncertainty.

""There has been a significant shift in adjudications, which began towards the end of the Biden Administration. While they had opened up the NIW process to a wider group of applicants, midway through, they changed their policies to become more restrictive. As such, we have seen a significant increase in Administrative Appeals Office (AAO) decisions in the NIW category." John Q. Khosravi, Managing Attorney, JQKLaw.com

These changes continue under the Trump Administration.


John and other have asserted that some application denials were expected due to the "regional nature of the work", others, many others despite involving outstanding national or international contributions, were also denied. In a review of RFEs, a common theme relates to an increased emphasis on providing concrete, verifiable evidence of the applicant’s work, alongside increased concern over inconsistent or evolving adjudication standards.


John noted that this has led to "increasing anxiety as to shifting adjudication standards."


Nonetheless, most petitions continue to be approved at the time of this writing.


As an example, we (ProfVal.com) have provided Business and Professional Plans, Expert Opinion Letters, and other services in support of immigration attorney’s work on approved EB-2 NIW petitioners in areas including business, law, STEM disciplines, medical fields, aviation, computer science, and many others. 



These shifts are creating challenges for immigration law firms and their clients alike, highlighting the importance of strategic petition preparation from qualified immigration attorneys.


More Petitions, Denials, & Changed RFEs: A Snapshot of Recent Trends

In fiscal year 2018, USCIS processed about 8,000 EB2 NIW petitions; by fiscal year 2023, this number had surged to approximately 50,000.[4]  As more petitions were filed, it also brought challenges, including inconsistent petition quality and stricter scrutiny by USCIS.  


Indeed, data from the U.S. Citizenship and Immigration Services (USCIS) shows a shift in approvals and denials [1]. While FY 2022 saw EB-2 NIW approval rates exceeding 90%, recent quarters reveal significant challenges for EB-2 NIW petitioners. In Q3 2024, there were 6,000 approvals and 2,800 denials.[2] This disparity widened in Q4 2024, with approvals dropping to 5,400 and denials rising to 3,400.[3]


ProfVal's role typically begins after a law firm receives their client’s RFE. In reviewing thousands of EB-2 NIW RFEs, our team has seen pronounced changes in the structure of RFEs.  At a holistic level, we tend to see that the USCIS accepts the eligibility of petitioners based on the “Advanced Degree” criteria, even when a petitioner applied based upon the “Extraordinary Ability” or the other way around.


Furthermore, we have observed a bottleneck in the I-140 adjudication process, which appears to be a response to the increasing demand in the EB-2 NIW category, a visa classification that remained current until December 2022, but has since faced retrogression in the Visa Bulletin. This increased pressure likely contributes to longer processing times and a noticeable rise in denials, both of which are significantly affecting applicants in this category.


We likely won’t see meaningful improvements until the situation stabilizes. If Congress raises the annual cap of 140,000 green cards, we may see a shift toward less stringent adjudications. In the meantime, we must be prepared to support attorneys as they guide clients through these challenging circumstances and help them achieve their immigration goals.


In January 2025, USCIS updated its policy manual and NIW guidance, incorporating key terms such as “potential prospective impact” and “broader impacts of the proposed endeavor” in relation to Prong 1 [4]. Notably, when a petitioner clearly meets Prongs 1 and 2, the petition is often approved. However, Prong 3 remains a discretionary assessment, where the adjudicating officer evaluates the petition in its entirety to determine whether the petitioner merits a waiver of the labor certification requirement. One of the biggest challenges of the National Interest Waiver lies in satisfying Prongs 1 and 3 of the three-prong Dhanasar (2016) test, which we will examine in greater detail in the next section. 


Typically, an RFE will include the words that: "the petitioner has not established that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification".  This is the hardest challenge to overcome.


Insights from RFEs and Respected EB-2 NIW Attorneys

Next, we share some combined insights from attorneys who are well known for their expertise for the EB-2 NIW.


While some argue that NIW adjudication remains consistent with pre-Dhanasar practices, leading attorneys highlight the three-prong test established by Matter of Dhanasar as the foundation of EB-2 NIW cases:


  • Prong 1: Substantial Merit and National Importance: This prong requires demonstrating how the applicant’s endeavor advances societal, scientific, economic, or cultural goals. Robert emphasized linking the endeavor logically to the applicant’s background, especially for entrepreneurs, and noted that innovative areas like semiconductor technologies often see favorable outcomes. Akalan Business Immigration, PLLC suggests using data-driven materials like industry reports or labor analyses to show the endeavor's significance and address USCIS concerns.Jonathan suggested emphasizing potential economic losses if the applicant is not admitted to strengthen the case for national importance. Brendan recommended reading through the Dhanasar decision itself, as in their RFEs USCIS often misquotes or misapplies the standards set forth in the decision. 


  • Prong 2: Well-Positioned to Advance the EndeavorApplicants must show unique qualifications to further their goals. Robert recommended highlighting specialized experience that exceeds the norm in the field. Brendan stressed the importance of clearly identifying the applicant's proposed endeavor, providing a professional plan/business plan or an endeavor statement, in order to frame the case in the light most favorable to the applicant. Akalan Business Immigration, PLLC suggests presenting a detailed record of achievements, ongoing work, and future plans with measurable benchmarks to demonstrate the applicant's ability to execute the proposed endeavor.


  • Prong 3: National Interest Waiver of the Job Offer RequirementOften the most challenging prong, petitioners must justify why labor certification is impractical and how their work uniquely benefits the U.S. Mark likened Prong 3 to EB-1 standards and noted a rise in RFEs, particularly focusing on job creation for entrepreneurs. Robert and Jonathan emphasized leveraging Prong 1 to build a strong foundation, while Mark cautioned against overwhelming cases with excessive evidence.Akalan Business Immigration, PLLC  asserts the importance of showing that traditional recruitment methods are impractical due to the specialized or urgent nature of the applicant's contributions, and provide evidence that their work addresses critical national or industry needs.


The above attorneys, supported by ProfVal’s analysis of RFEs, agree that Prong 3 poses the greatest challenge. A strategic, evidence-driven approach is essential for success.


The group highlighted the pitfalls of self-filed petitions and those prepared without legal expertise.  Mark pointed to an increase in unqualified cases, contributing to higher RFE and denial rates, and stressed the importance of maintaining quality amidst the rise of coaching companies. Our observations have been consistent with this.  


While we ask all clients to confirm that they have legal counsel, ProfVal regularly encounters RFEs from petitioners without legal counsel -- we suggest that they contact an attorney. It is our experience that their RFEs include a higher probability of irrecoverable errors due to navigating the process without professional guidance. 


Robert noted growing scrutiny on cases lacking clear connections between the applicant’s background and their endeavor.  Furthermore, as Marcelo highlighted, USCIS demands evidence that goes beyond the Dhanasar framework, creating barriers for entrepreneurs whose endeavors involve business plans. This shift could hinder innovation by questioning petitioners' commitment, despite lacking clear legal grounds to do so in RFEs or denials.


Jonathan’s strategy of keeping some evidence for potential RFEs underscores the arbitrary nature of adjudication decisions and highlights the value of a human-centered, strategic approach.


This feedback underscores the critical importance of meticulous petition preparation tailored to the evolving demands of the EB-2 NIW process as adjudication standards tighten.


Marcelo noted that RFEs and NOIDs increasingly demand evidence beyond the established Dhanasar framework, with USCIS often making ultra vires demands. This approach has resulted in case rejections that would have previously been accepted under Dhanasar. While the standard for PhD self-petitioners focused on research remains, petitions involving business plans face heightened scrutiny, with officers questioning petitioners' commitment to their proposed endeavors. Such practices raise concerns about potential abuse of discretion when government policies and precedents are disregarded.



Navigating the Path Ahead

For immigration law firms, the current environment demands both strategic insight and responsiveness to USCIS trends. Marcelo Gondim notes that heightened evidentiary requirements necessitate going beyond Dhanasar’s framework, especially for business-plan-driven cases. Firms must ensure petitions demonstrate alignment with U.S. priorities and provide clear evidence of the petitioner’s commitment to their endeavor.


Jonathan A. Grode highlights the importance of reserving key evidence for RFEs, making Expert Opinion Letters (EOLs) a critical tool. These documents, when precise and tailored, can simplify qualifications for adjudicators while maintaining sufficient depth to withstand scrutiny.


Brendan J. Venter and Mark P. Popeil emphasize quality over quantity in evidence.


How ProfVal is Adapting to the New Landscape

As a firm that supports immigration attorneys, we (ProfVal.com) have adapted in concert with our law firm clients. Recognizing the evolving challenges, particularly those associated with Prong 1 and 3, we refined our approach to better address these complexities. 


Our EB-2 NIW Professional Plans, Business Plans, and Expert Opinion Letters are carefully tailored to meet the specific demands of each petition. This process includes emphasizing prongs 1 and 3, where scrutiny has increased, and adapting arguments to align with current adjudication trends and government priorities, including an analysis of the broader impact of the petitioner proposed endeavor and its impact in the US welfare and economy.  Our Expert Opinion Letters have been adapted to  proportionately allocate more effort and content to Prong 1 and 3.


To enhance accessibility, we have streamlined Expert Opinion Letters, ensuring they provide concise yet comprehensive insights for USCIS officers handling large caseloads. For business plans, we collaborate with GuidedVenture.com to create robust documents that align with both immigration and entrepreneurial standards.



References:

[1] U.S. Citizenship and Immigration Services. "Quarterly EB-2 NIW Approval/Denial Statistics." Available at: https://www.uscis.gov 

[2] U.S. Citizenship and Immigration Services. "EB-2 NIW Quarterly Reports Q3 2024." Retrieved from: https://www.uscis.gov/statistics 

[3] U.S. Citizenship and Immigration Services. "EB-2 NIW Quarterly Reports Q4 2024." Retrieved from: https://www.uscis.gov/statistics [4] U.S. Citizenship and Immigration Services. "FY 2018 and FY 2023 EB-2 NIW Filing Statistics." Accessed at: https://www.uscis.gov 


Attorneys Cited:

Disclaimer about attorneys referenced:  The perspectives referenced in this document reflect insights informed by public commentary and, in some instances, direct input from respected immigration attorneys, including:


Statements have been paraphrased or adapted from publicly available sources for clarity and consistency.  These insights are included solely to provide context and help inform understanding of complex immigration topics. Nothing in this document should be construed as legal advice, nor do the referenced statements represent official positions or legal interpretations by ProfVal or any attorney named. We make no guarantees of the accuracy or completeness of the information provided.  The inclusion of commentary from individual attorneys or firms does not imply any formal affiliation, partnership, or endorsement—either by ProfVal of the attorneys, or by the attorneys of ProfVal.

 
 
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