The NIW Landscape in 2026 – Are RFEs on Prong 2 Now the Norm?

Proving that you're "well-positioned" to pursue nationally-important work is becoming harder to prove | Adobe

By Amber Davis, Principal Attorney at Waypoint Immigration USA, and Kate Luther

The National Interest Waiver (NIW) has been an integral part of the U.S. immigration pathway since the 90s. Designed to streamline immigration for immigrants who brought significant benefit to the U.S. but fell through the cracks of the complex legal immigration system, the NIW removes the job offer requirement and thus the need for Labor Certification, often called PERM. This allows qualifying individuals to fast-track their application so they can start (or advance) the important work they are promising to do for the United States. 

That nationally important work is the key to this particular visa category, requiring applicants to deliver expertise or opportunity that is undeniably beneficial to the U.S. As you might imagine, this can include professionals and entrepreneurs from a variety of fields, engaged in a wide range of research, education, invention, and work. Because of that variety, applicants are expected to prove both the national scope and nature of the work as well as their own unique ability to pursue it. 

And therein lies the challenge. 

Because while the threshold for what makes a particular endeavor of “national interest” seems to be relatively flexible, the requirements for delivering that work does not. At least, not anymore. 

The Problem With the Second Prong

Because factors like inclination and ability can vary based on field or application, USCIS relies on a three-part (prong) requirement, as set out in the 2016 Dhanasar decision:

1. You must show proof that your endeavor has “substantial merit and national importance.”

2. You must provide evidence that you are well-positioned to advance your endeavor.

3. You must show, on balance, why it would be beneficial to the U.S. to waive the requirements for a job offer and Labor Certification. 

Historically, we have been able to satisfy prong #2 by showing a combination of references, awards, achievements, and education and/or training that pointed to the petitioner’s potential for success. 

We are looking forward in this instance, asking USCIS to recognize the individual’s ability to pursue their chosen work and produce the expected results. We are asking the agency to see that what they have learned and experienced so far makes them “well-positioned” to advance their endeavor.

That’s clearly what the Dhanasar decision dictates. And again, in the past, USCIS has followed that line of reasoning. 

But recent trends suggest a shift in the agency’s approach. 

Rather than arriving at an all-encompassing “on balance” review, the agency is getting stuck on the applicant’s positioning laid out in prong #2. Not because they don’t see the advanced degrees and cutting edge applications, but because they are looking for past achievements at an “extraordinary” level with huge national impact already being accomplished.

As in, how important and accomplished are they now? What extraordinary work have they already done?

The result is that a skilled researcher leading a clinical trial to cure a rare disease is not considered on those merits. Instead, USCIS is asking that the disease already be cured, and the researcher is ready to cure something else. 

They are treating the NIW as they would an EB-1A candidate. And they are issuing RFEs (Requests for Evidence) before they ever get to prong #3. 

That is not what Dhanasar intends. It is not within the agency’s framework for analyzing these cases. 

But it is what’s happening. And it is an issue we’re actively seeking to address. 

Get the Immigration Guidance You Need

Have you experienced a Prong-2 RFE? Do you need assistance with your E-B2 NIW submission? Give us a call!

Waypoint Immigration offers a range of case preparation and review services, and we work with individual petitioners (not companies) so we are focused only on your best interests throughout the process. Our immigration team has the experience and insight to help you find the best path to immigration, no matter where you are in your journey. 

Contact our office today to schedule your consultation.