NIW Adjudication Standards: What Remains Unchanged?

The basic eligibility standard for NIW cases is grounded in a three-prong test established by the Matter of Dhanasar (2016). This standard is unlikely to change, as it is based on established legal precedent rather than internal policy alone. The three-prong test evaluates:

1. Substantial Merit and National Importance:
   The applicant’s proposed endeavor must have significant value and importance to the United States.
2. Well-Positioned to Advance the Endeavor:
   The applicant must demonstrate that they possess the qualifications, expertise, and resources necessary to successfully advance their endeavor.
3. Balancing Test:
   On balance, the United States must benefit from waiving the labor certification requirement, making it unnecessary for the applicant to secure a job offer before obtaining permanent residence.

Since this three-prong approach is rooted in case law, it cannot be unilaterally altered by USCIS and remains a consistent standard for adjudication.

While higher-level standards are unlikely to change, USCIS policy manual updates can influence how adjudicators interpret specific cases, particularly in fields like STEM and entrepreneurship. For instance:

• Favorable 2022 Updates for STEM and Entrepreneurs:
  In 2022, USCIS introduced policy changes that provided clarity and favorable treatment for STEM-related and entrepreneurial NIW cases. These changes highlighted how contributions in these areas align with U.S. national interests.
• Potential for Reversal:
  Internal policy changes are subject to the discretion of USCIS leadership. A new administration could reverse or modify these policies, potentially impacting specific categories of applicants.

1. Core Standards Remain Stable:
   The three-prong test from Matter of Dhanasar provides a solid foundation for NIW adjudications and is unlikely to change significantly under any administration.
2. Policy Adjustments Are Possible:
   Internal USCIS policy updates, such as those favoring STEM and entrepreneurial applicants, may shift depending on leadership priorities.
3. Plan Accordingly:
   Applicants should focus on meeting the fundamental eligibility criteria and providing clear evidence of how their endeavors align with U.S. national interests. Consulting with an experienced immigration attorney can ensure a strong case regardless of policy changes.

While the Trump administration or other future administrations could introduce changes to USCIS policies affecting specific NIW cases, the fundamental standards for adjudication are unlikely to change. Applicants can confidently pursue NIW petitions by aligning their cases with the established three-prong test.

At Scott Legal, P.C., we specialize in NIW applications, including STEM and entrepreneurial cases. Contact us today to schedule a consultation or explore our free resources to strengthen your NIW petition.