By Cesar Augusto Taborda Lima
The EB-2 national interest waiver works for a Brazilian professional who has a well-defined endeavor of national importance and evidence, much of it independent, of the ability to carry it out; a degree and a solid CV are not enough. A petition must clear EB-2 eligibility and then the Matter of Dhanasar test, and tends to fail on a generic endeavor or on evidence that does not back its claims. Approval only opens the next stage, which depends on the visa queue.
(i) National interest waiver
Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
INA § 203(b)(2)(B)(i), 8 U.S.C. 1153(b)(2)(B)(i).
The power now lies with the Secretary of Homeland Security, acting through USCIS; the waiver also covers labor certification, and the professional may self-petition on Form I-140.
EB-2 eligibility comes first
An advanced degree is a US degree above the bachelor’s, or a foreign equivalent; a bachelor’s followed by at least five years of progressive experience in the specialty counts as a master’s (8 CFR 204.5(k)(2)). The Policy Manual update of 15 January 2025 confirms that USCIS checks whether the experience followed the degree and lies in the specialty, and whether the endeavor’s occupation requires a bachelor’s for entry; its example is an engineer with a graduate degree who plans to open a bakery, a trade with no degree requirement.
For Brazilian degrees, from the bacharelado and licenciatura (undergraduate degrees) to the mestrado (a stricto sensu master’s), USCIS may rely on a credential evaluation, which is only advisory; the officer decides. The weak point is the especialização, a lato sensu postgraduate course. Law 9,394/1996, Brazil’s National Education Guidelines and Framework Law, lists master’s and doctoral programs separately from specialization courses (art. 44, III), and nothing in the regulation or the Policy Manual supports treating a specialization as a master’s. Without a stricto sensu master’s, the usual routes are the five years of experience or exceptional ability.
Exceptional ability requires at least three of the kinds of evidence in 8 CFR 204.5(k)(3)(ii) (a degree related to the area, ten years of full-time experience, a professional license, remuneration that reflects the ability, membership in professional associations, recognition by peers or organizations), followed by a review of the whole record; a degree or license alone does not prove it (INA § 203(b)(2)(C)), and the ability must relate directly to the endeavor.
The Dhanasar test
In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), USCIS’s Administrative Appeals Office set the current test. The petitioner must show, by a preponderance of the evidence, that (1) the proposed endeavor has both substantial merit and national importance; (2) the person is well positioned to advance it; and (3) on balance, it would be beneficial to the United States to waive the job offer and labor certification. Even then, the waiver is discretionary.
The case itself shows the first prong at work: the petitioner’s hypersonic propulsion research had national importance, while his STEM teaching, though meritorious, showed no broader impact on the field. The second prong looks at education, track record, plan, progress and the interest of customers or investors, without requiring proof that the endeavor will probably succeed. The third weighs factors such as the impracticality of labor certification and the urgency of the national interest. The 2025 guidance, still current in the Policy Manual, added examples on national importance and entrepreneurs and explained how letters and business plans are weighed.
Where petitions usually fail
A vague endeavor is the original flaw: the Policy Manual asks for specific projects, goals and means of execution, beyond an occupation such as “engineer”. Next comes confusing the field’s importance with the endeavor’s. The general importance of a profession, a national shortage in an occupation, or benefits to a single employer do not by themselves establish national importance; nor do broad claims about job creation.
Generic letters carry little weight; USCIS values letters from experts with first-hand knowledge of the work, describing specific achievements and supported by independent evidence. The endeavor must also match what the CV, contracts and publications show, since each piece of evidence is weighed for relevance, probative value and credibility. Documents in Portuguese need a full English translation, certified by the translator as complete and accurate and with a statement of competence (8 CFR 103.2(b)(3)).
Eligibility must exist on the filing date, and later evidence cannot cure its absence (8 CFR 103.2(b)(1) and (b)(12)). A response to a Request for Evidence must be complete, filed at once, within at most twelve weeks, with no extensions. Since 5 August 2026 (PA-2026-05), the Policy Manual restores officers’ discretion to deny without a prior request when required initial evidence is missing and drops the fourteen extra days once given for notices mailed abroad; it also clarifies that any response, even a partial one, counts as a request for a decision.
From filing to green card
Under the current G-1055 fee schedule, Form I-140 costs US$715 on paper, plus a US$300 Asylum Program Fee for self-petitioners. Premium processing (US$2,965) guarantees USCIS action within 45 business days, a clock that restarts if evidence is requested; it does not shorten the visa queue.
The priority date is the filing date of the complete petition (8 CFR 204.5(d)). Brazil falls under “All Chargeability Areas Except Those Listed” in the Visa Bulletin, where the EB-2 queue moves and has had cutoff dates in recent years. Check the current bulletin and USCIS guidance on which chart applies.
Once a visa is available, a person who entered the United States through inspection and admission, or parole, may apply to adjust status on Form I-485, even concurrently with the I-140 (8 CFR 245.2(a)(2)). Adjustment applications filed since 18 September 2026 fall under a new public charge rule, although DHS expects little change for most employment-based cases. Applicants abroad go through the National Visa Center, which schedules the interview in the country of residence or, on request, nationality; in Brazil, at the US Consulate General in Rio de Janeiro, which requires all original documents at the interview.
The State Department’s pause on immigrant visa issuance to nationals of a list of countries that included Brazil, in place from 21 January 2026, ceased to apply on 21 August 2026 under the court’s order in CLINIC et al. v. Rubio, according to the official notice as updated on 28 August 2026.
As I see it, the NIW rewards those who arrive with the work already under way: an endeavor that fits in a few lines, a record that supports it, and evidence that predates the petition. For someone still building that record, strengthening the evidence before filing is usually the wiser course.