The
is an attractive immigration pathway for professionals who can demonstrate that their work benefits the United States.
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To qualify, applicants must satisfy the three-prong test established in Matter of Dhanasar:
Many applicants successfully establish Substantial Merit and National Importance, only to face challenges proving that they are well-positioned to advance their endeavor. USCIS is not just interested in whether your work is valuable—it also wants to see that you have the expertise, experience, and resources to execute your plans and make a meaningful impact in the U.S.
A well-qualified professional can still be denied an NIW if they fail to demonstrate that they have the ability to carry out their work successfully in the U.S.. The “Well-Positioned” criterion ensures that only those who have the right background, funding, partnerships, or career trajectory are granted a waiver of the labor certification process.
In this article, we will break down:
If you’re planning to apply for an EB2 NIW, understanding this requirement can make or break your case. Let’s dive into the details.
PS: If you go through this guide and believe you have a potentially valid case, then don’t hesitate to fill out our free attorney case assessment questionnaire: Click here to access our free NIW evaluation form!
The third prong of the EB2 NIW test, as outlined in Matter of Dhanasar, requires applicants to demonstrate that they are well-positioned to advance their proposed endeavor in the United States. This means USCIS must be convinced that you have the qualifications, expertise, resources, and support necessary to successfully continue your work and make a lasting impact.
Unlike the Substantial Merit and National Importance criteria, which focus on the value of your work, this requirement evaluates your ability to execute your plans effectively. Even if your work is highly innovative and beneficial, USCIS may deny your petition if they are not convinced that you have the skills, connections, and resources to bring it to fruition.
USCIS considers several factors to determine whether an applicant has the capability and credibility to carry out their endeavor. While there is no fixed checklist, strong petitions typically include some or all of the following evidence:
Your academic qualifications and professional experience should align with your proposed work.
📌 Example: A biomedical researcher with a Ph.D. in genetics, 10 years of experience, and multiple high-impact publications would be well-positioned to advance an endeavor related to gene therapy innovations.
A history of professional success in your field strengthens your NIW case.
📌 Example: A cybersecurity expert with experience working for the Department of Homeland Security or a major tech company like Google or Microsoft would have a strong case for NIW approval.
Having financial support demonstrates that your work is feasible and sustainable.
📌 Example: A clean energy entrepreneur with $500,000 in venture capital funding would have a strong case for being well-positioned.
Partnerships with respected organizations or government entities strengthen your case.
📌 Example: A public health specialist working with the CDC, WHO, or NIH would likely be well-positioned to implement national health programs.
A strong petition should include evidence that you have definitive plans for how you will advance your endeavor in the U.S.
📌 Example: A medical researcher with a formal offer from Harvard Medical School to lead a groundbreaking study is well-positioned.
Many applicants meet the first two NIW criteria but fail to demonstrate that they have the ability to execute their plans. Common reasons for rejection include:
🚫 No relevant degree or work experience in the proposed endeavor.
🚫 No documented history of success in the industry.
🚫 Lack of funding or financial feasibility.
🚫 No partnerships, employer sponsorship, or institutional support.
🚫 Unclear or vague plans for future contributions in the U.S..
📌 Example of a Weak Case: A mechanical engineer with no patents, no collaborations, and no industry recognition may struggle to prove they are well-positioned, even if their work is beneficial.
Think of your NIW petition as a three-part argument:
Failing to meet any one of these three criteria can lead to a denial. If USCIS is not convinced that you have the skills, resources, and credibility to successfully carry out your endeavor, they may issue a Request for Evidence (RFE) or deny the petition.
To satisfy the third prong of the NIW criteria, applicants must provide concrete evidence that they have the expertise, experience, and resources needed to advance their work successfully in the U.S. Below are strong indicators that an applicant is well-positioned.
A highly relevant academic degree or specialized training increases credibility and helps demonstrate that you have the necessary knowledge to advance your work.
📌 Examples of Qualifying Evidence:
✔ Ph.D., Master’s, or professional degree in a field directly related to the proposed endeavor.
✔ Postdoctoral research in a high-impact area with demonstrated results.
✔ Certifications or specialized training recognized by industry experts.
✔ A track record of publishing research, securing patents, or contributing to scientific or technological advancements.
📌 Example of a Strong Case:
🔹 A data scientist with a Ph.D. in Artificial Intelligence, multiple peer-reviewed publications, and a patent for AI-driven cybersecurity solutions.
📌 Example of a Weak Case:
❌ A finance professional with a general MBA, applying under NIW for blockchain technology development without technical experience.
Having substantial experience in your field demonstrates that you have the skills to execute your endeavor successfully. USCIS looks for measurable career achievements as proof.
📌 Examples of Qualifying Evidence:
✔ Leadership roles (e.g., CEO, Senior Researcher, Department Head) in a recognized organization.
✔ Experience leading large-scale projects, national initiatives, or corporate innovations.
✔ Significant industry contributions, such as improving efficiency, safety, or accessibility.
✔ Employment at top research institutions, Fortune 500 companies, or government agencies.
📌 Example of a Strong Case:
🔹 A renewable energy engineer with 15 years of experience, having led the development of sustainable solar panels used in multiple U.S. cities.
📌 Example of a Weak Case:
❌ A software engineer with two years of experience and no industry awards, patents, or leadership roles.
Having financial support shows USCIS that your endeavor is viable. If your work has been backed by government agencies, private institutions, or investors, it strengthens your case.
📌 Examples of Qualifying Evidence:
✔ U.S. government grants (NSF, NIH, DOE, DARPA, etc.).
✔ Private-sector investments in your startup or business.
✔ University funding for ongoing research.
✔ Crowdfunding, venture capital, or angel investor support.
📌 Example of a Strong Case:
🔹 A biomedical researcher awarded a $1 million NIH grant for cancer research and currently collaborating with U.S. medical institutions.
📌 Example of a Weak Case:
❌ An entrepreneur without investment or revenue, claiming to develop a healthcare startup but providing no financial plan.
Strong endorsements from U.S. institutions prove that you are actively engaged in your field and well-positioned to make a lasting impact.
📌 Examples of Qualifying Evidence:
✔ Signed collaboration agreements with universities, research centers, or corporations.
✔ Memorandums of Understanding (MOUs) or letters of interest from industry leaders.
✔ Partnerships with government agencies, non-profits, or industry organizations.
✔ Invitations to serve as a panelist, guest speaker, or consultant on a national level.
📌 Example of a Strong Case:
🔹 A public health researcher working with Harvard Medical School and the CDC to develop pandemic response strategies.
📌 Example of a Weak Case:
❌ A freelance consultant with no signed agreements or professional endorsements proving future U.S. work.
To be well-positioned, you must demonstrate a clear plan for the future, not just past achievements. USCIS wants to see where your work is heading and how it will continue to impact the U.S.
📌 Examples of Qualifying Evidence:
✔ Job offers or letters of intent from U.S. employers.
✔ A detailed business plan (for entrepreneurs) showing scalability and national impact.
✔ A research proposal with documented U.S. institutional backing.
✔ Conference presentations, industry leadership, or future speaking engagements in the U.S.
📌 Example of a Strong Case:
🔹 A cybersecurity expert with a job offer from the U.S. Department of Defense, working on national security projects.
📌 Example of a Weak Case:
❌ A professor without a faculty appointment, hoping to find opportunities after NIW approval.
Even if an applicant’s work has substantial merit and national importance, USCIS may still deny the NIW petition if they fail to demonstrate that they are well-positioned to execute their proposed endeavor. Below are common reasons why applicants fail to meet this requirement and how to avoid them.
🔴 Problem: The applicant’s education and work experience do not align with their proposed endeavor.
📌 Examples of Weak Cases:
🚫 An IT professional with a general MBA applying for an NIW in biomedical engineering with no experience in that field.
🚫 A civil engineer claiming to advance artificial intelligence (AI) research without a background in AI or data science.
✅ Solution:
🔴 Problem: The applicant does not have a history of leadership, innovation, or notable accomplishments in their field.
📌 Examples of Weak Cases:
🚫 A junior scientist with no peer-reviewed publications or citations.
🚫 A startup founder with no previous entrepreneurial experience and no evidence of past success.
✅ Solution:
🔴 Problem: The applicant’s proposed endeavor requires significant funding, but they fail to provide evidence of financial resources.
📌 Examples of Weak Cases:
🚫 A clean energy entrepreneur claiming to develop next-gen solar panels but with no investor funding or business revenue.
🚫 A medical researcher with a promising project but no secured grants or institutional support.
✅ Solution:
🔴 Problem: The applicant has no evidence of working with U.S. institutions, research labs, corporations, or industry leaders.
📌 Examples of Weak Cases:
🚫 A biotech researcher developing new drug therapies but lacking partnerships with U.S. pharmaceutical companies.
🚫 A public policy expert without any engagement with government agencies, think tanks, or research organizations.
✅ Solution:
🔴 Problem: The applicant provides vague or unclear plans about how they will continue their work in the U.S.
📌 Examples of Weak Cases:
🚫 A professor claiming they will contribute to U.S. academia but lacking a faculty appointment or research proposal.
🚫 An entrepreneur stating they will launch a business but providing no business plan, market research, or funding commitments.
✅ Solution:
🔴 Problem: The applicant provides generic, vague, or unconvincing letters that do not prove their impact or qualifications.
📌 Examples of Weak Cases:
🚫 Letters from colleagues, mentors, or personal connections rather than independent experts.
🚫 Letters that only say the applicant is “talented” or “hardworking” without discussing national importance.
✅ Solution:
If your NIW petition lacks strong evidence that you are well-positioned to advance your endeavor, USCIS may issue an RFE (Request for Evidence) or deny your application. Below are proven strategies to strengthen your case and avoid common pitfalls.
🔹 If your degree is not directly related to your proposed endeavor, USCIS may question your expertise.
✔ Solutions:
✅ Highlight relevant experience – Show how your past work, research, or training aligns with your field.
✅ Show certifications & additional training – If you transitioned fields, provide evidence of professional development (e.g., online courses, boot camps, industry certifications).
✅ Use expert letters – Have industry leaders validate your qualifications and explain how your expertise applies to your NIW endeavor.
📌 Example:
❌ Weak Case: A civil engineer applying for an NIW in AI without any formal background in machine learning.
✅ Fixed Case: The engineer completed AI certifications, worked on infrastructure automation projects, and had letters from AI experts confirming their expertise.
🔹 If USCIS is unsure whether your work is recognized as important, they may deny your petition.
✔ Solutions:
✅ Provide peer-reviewed publications, patents, or citations proving your influence.
✅ Show that your work has been featured in major media outlets or cited by policymakers.
✅ List awards, keynote speeches, and panel invitations as indicators of industry leadership.
📌 Example:
❌ Weak Case: A researcher with publications in low-impact, little-known journals.
✅ Fixed Case: Highlighted highly cited papers, provided Google Scholar citation count, and obtained letters from leading scientists confirming the impact.
🔹 If your endeavor requires funding, lack of financial support may raise doubts about feasibility.
✔ Solutions:
✅ Show grants, venture capital, or government funding to prove financial viability.
✅ If no external funding, submit financial projections, client contracts, or revenue reports to demonstrate sustainability.
✅ Include a detailed business plan for entrepreneurs, outlining scalability, projected revenue, and market demand.
📌 Example:
❌ Weak Case: A clean energy entrepreneur without funding or a clear business plan.
✅ Fixed Case: Secured $500K in venture capital, obtained letters from investors, and provided a detailed business plan with revenue projections.
🔹 If USCIS sees no institutional or industry support, they may assume your work lacks credibility.
✔ Solutions:
✅ Obtain letters of support from universities, government agencies, or corporations confirming their collaboration.
✅ Sign MOUs (Memorandums of Understanding) with institutions to prove planned partnerships.
✅ Provide evidence of joint research projects, corporate partnerships, or advisory board roles.
📌 Example:
❌ Weak Case: A researcher claims they are “developing technology for NASA” but provides no proof of collaboration.
✅ Fixed Case: Obtained an MOU with NASA, emails confirming project involvement, and a letter from a NASA official supporting the petition.
🔹 Weak, generic letters can sink an otherwise strong petition.
✔ Solutions:
✅ Letters must be from top experts, not just coworkers or supervisors.
✅ Each letter should explain why your work is nationally important and how you are well-positioned to continue it.
✅ Use data and real-world impact examples rather than vague praise.
📌 Example:
❌ Weak Case: A generic letter saying, “The applicant is hardworking and talented.”
✅ Fixed Case: A letter from a senior professor at MIT, stating, “The applicant’s work on AI-based cybersecurity has been cited 500+ times and is used by Fortune 500 companies for fraud detection.”
🔹 USCIS denies many petitions because applicants fail to show how they will continue their work in the U.S.
✔ Solutions:
✅ Provide employment contracts, job offers, or letters of intent from U.S. companies.
✅ If self-employed or entrepreneurial, include a business plan with projected growth, revenue, and impact analysis.
✅ Submit future research proposals, funding applications, or government contracts showing your continued U.S. contributions.
📌 Example:
❌ Weak Case: A researcher claims they will “continue work in AI,” but provides no evidence of how.
✅ Fixed Case: Showed a signed contract from Google, confirming their role in a high-impact AI research initiative.
Proving that you are well-positioned to advance your endeavor is one of the most critical aspects of an EB2 National Interest Waiver (NIW) petition. While meeting the Substantial Merit and National Importance criteria is essential, failing to demonstrate that you have the skills, resources, and track record to successfully execute your work in the U.S. can lead to a Request for Evidence (RFE) or denial from USCIS.
To strengthen your petition:
✔ Highlight your education, expertise, and industry contributions.
✔ Provide strong letters of recommendation from recognized experts.
✔ Show proof of financial backing, funding, or institutional support.
✔ Demonstrate active collaborations, partnerships, and industry recognition.
✔ Submit job offers, business plans, or research proposals to prove your future impact.
If USCIS challenges your case, don’t panic—focus on filling in the gaps with strong evidence. A well-prepared petition with a clear argument, strong supporting documents, and a well-defined path for future contributions significantly increases your chances of approval.
For more in-depth guidance, case studies, and official sources related to the EB2 NIW Well-Positioned to Advance the Endeavor Criteria, explore the following resources:
✔ Use official USCIS sources to ensure your information is accurate and up-to-date.
✔ Follow Matter of Dhanasar case law to structure your argument effectively.
✔ Leverage industry recognition, research collaborations, and funding proof to strengthen your petition.
✔ Track your case and be proactive if there are delays or RFEs.
