NIW Approval Rates Have Nearly Halved in Three Years. Here Is What Changed.

The approval number you need to see first

In fiscal year 2022, USCIS approved 95.7% of EB-2 National Interest Waiver I-140 petitions. In fiscal year 2025, that number had fallen to 55.2%. Case tracking data for March 2026 puts approval at around 44% for regularly processed petitions — roughly one in two cases getting a green light without an RFE or outright denial. That is the sharpest decline of any major employment-based preference category over the same period.

What makes the number harder to dismiss: raw filing volume has not collapsed. USCIS approved nearly 20,000 NIW petitions in FY2025. Demand is still high and applications keep coming in. What changed is what happens to those filings once an adjudicator reaches them — and how often USCIS now disagrees with the petitioner's own legal reading of their qualifications.

The RFE rate has tracked alongside the approval drop. In 2026, Requests for Evidence on NIW I-140 cases are running roughly 40 to 45 percent depending on the service center and whether premium processing was used. That means nearly half of NIW filers are being asked for additional evidence before any decision issues. In FY2022, that figure was a fraction of what it is now.

What the Dhanasar test actually demands — the part most filings get wrong

The legal standard for NIW approval has not changed since 2016. Matter of Dhanasar established a three-prong test: first, the proposed endeavor has substantial merit and national importance; second, the petitioner is well-positioned to advance that endeavor; third, on balance, it would benefit the United States to waive the job offer and labor certification requirements normally required for an immigrant visa. All three prongs must be satisfied.

What has shifted is which prong is generating the most friction. USCIS officers are reading the third prong — the waiver justification — much more narrowly than three or four years ago. The question 'why should we waive the employer requirement for this person' used to be answered adequately by a strong record of professional accomplishment. It is now being asked as a specific, forward-looking question: what will this petitioner do in the United States, specifically, that would not happen if they had to compete for a position through the normal employer-driven market?

That is a harder question to answer with a traditional NIW petition built around publications, citation counts, and recommendation letters from colleagues. It requires a concrete theory of impact that is specific to the petitioner's presence and plans in the US — not just to the general importance of their research area or profession.

Where cases are falling apart in 2026

The most common RFE grounds in 2026 focus on the 'well-positioned' prong. USCIS is asking for evidence that the petitioner is specifically capable of executing their proposed endeavor — not just that they are qualified in the relevant field generally. Recommendation letters that praise overall accomplishments without connecting the petitioner's work to concrete, measurable outcomes are being treated as insufficient.

For academic researchers, the gap generating the most RFEs is between 'my work is cited' and 'my work is being used.' Citations prove peers have read the research. They do not prove the research is being deployed in the real world in ways that advance national interests. Officers are increasingly asking for deployment evidence: licensing agreements, clinical applications, government contracts, industry partnerships, or other tangible outcomes that connect published work to applied results outside the academic literature.

For entrepreneurs and business-focused NIW petitioners, the scrutiny lands on whether the business plan reflects actual commercial traction or remains speculative. A projection without revenue history, signed customer commitments, or industry validation is not holding up under current adjudication. The 'well-positioned' prong, in a business context, now requires demonstrated ability to execute — not just a strong idea and a credential.

What the May 21 AOS memo adds to the pile

Policy memorandum PM-602-0199, issued May 21, 2026, applies to every pending and future I-485 — including those filed by approved NIW self-petitioners. For employer-sponsored EB-2 and EB-3 applicants, the AOS discretion analysis gives officers concrete equitable anchors: the employer's need for the worker, the worker's contributions to a US company's operations, a track record of H-1B sponsorship and compliance. NIW self-petitioners do not have those anchors in the same form.

The entire premise of the NIW is that the petitioner's work is valuable enough to the national interest that the government should waive the normal job market process. That is a strong argument for the I-140 petition. But the AOS officer under PM-602-0199 is separately asking: given that consular processing is available, why should this person's adjustment of status be approved rather than requiring them to process abroad? The national interest rationale that won the I-140 is not automatically a winning answer to that distinct question.

The AOS discretion analysis for a NIW self-petitioner requires the officer to weigh the petitioner's specific equities in the United States — years of lawful presence, employment history, family ties, tax compliance, community connections — against the availability of consular processing. For someone who has been in H-1B status for six or seven years, built a career here, and has an approved NIW I-140, those equities are real. But PM-602-0199 says they must be articulated and documented. They do not carry themselves automatically.

The India backlog is a separate, compounding problem

For Indian-born EB-2 NIW petitioners, the AOS discretion overlay is not even the most immediate issue right now. The June 2026 Visa Bulletin puts India EB-2 Final Action at September 1, 2013 — a retrogression of more than ten months from the May 2026 cutoff of July 15, 2014. If your NIW I-140 has a priority date after September 1, 2013, you cannot file an I-485 yet under the current bulletin. That covers essentially every Indian-born NIW petitioner who filed their petition after September 2013.

What this means in practice: most Indian-born NIW holders are in a holding pattern. They have an approved I-140, they are maintaining H-1B or another nonimmigrant status, and they are watching the bulletin knowing the June 2026 retrogression pushed their wait even further out. The AOS discretion questions will become urgently pressing the moment the priority date becomes current — which, at current retrogression depth, could still be years away.

For rest-of-world NIW applicants, EB-2 is current in the June 2026 bulletin, meaning concurrent filing is available the moment an I-140 is approved. That is the population for whom the AOS discretion analysis is live right now, not theoretical. Anyone in that position with an approved NIW I-140 needs to think about what the PM-602-0199 framework means for their I-485 package before filing it.

Premium processing is a timing tool, not a fix

Premium processing for Form I-907 costs $2,965 as of March 2026. It commits USCIS to issuing a decision, an RFE, or a denial on the I-140 within 45 business days. With a 40 to 45 percent RFE rate, knowing in 45 days whether your petition has been flagged — rather than waiting 18 months to find out — has genuine value. An early RFE gives you time to respond and rebuild, rather than spending over a year waiting only to receive a request you then have to race against a deadline to answer.

What premium does not do is improve the underlying case. An RFE issued at 45 days contains the same legal analysis as one issued at 18 months. If the petition does not adequately address the 'well-positioned' prong or the waiver justification, premium will surface that problem faster but does not fix it. The $2,965 is a timing investment, not an evidence substitute.

What to actually build into the case now

Given where adjudication friction is concentrated, every assertion about national importance needs external validation beyond what the petitioner produced themselves. A government agency that funds the research area. An industry consortium that has adopted standards in the field. A regulatory body that has issued guidance citing the problem the petitioner is solving. Those are the kinds of third-party markers that establish national importance with specificity rather than with claims.

For the 'well-positioned' prong, the petition needs to demonstrate deployment or execution of work, not just preparation and credentials. If the research is being licensed, include the licensing agreement. If software or methodology is being used by companies or agencies, document the usage with letters or contracts. If the enterprise has customers or signed letters of intent, include them. Citations and academic achievements establish that the petitioner is qualified. They do not, by themselves, establish that the petitioner is the one who will execute the specific endeavor they have described.

For the AOS discretion layer that sits on top of the I-140, think of it as a parallel case that needs its own documentation. The equities that support a favorable exercise of discretion — continuous lawful status, full compliance with immigration law, a documented employment history in the United States, family ties, community involvement, tax filings — should appear in the I-485 package as organized evidence, not as items left for the officer to infer from a bare application. The May 21 memo's analysis of positive and negative factors is a checklist. Building the file against that checklist before filing is far more manageable than trying to supplement after an unfavorable decision. This article is informational only and does not constitute legal advice. NIW analysis is fact-specific and the right approach depends on details that only a licensed immigration attorney reviewing your file can assess.