Understanding the Third Prong of EB-2 NIW
On Balance, it Would be Beneficial to the United States to Waive the Job Offer and thus the Permanent Labor Certification Requirements
By Attorney Yazhou Wang (yazhou.wang@hooyou.com)
The EB-2 National Interest Waiver (NIW) is a pathway for foreign nationals to obtain a U.S. green card without requiring employer sponsorship. The U.S. Citizenship and Immigration Services (USCIS) evaluates NIW petitions based on a three-pronged test established in Matter of Dhanasar (2016). This article focuses on the third prong of the test, which requires petitioners to demonstrate that "on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements."
After establishing the first two prongs—(1) that the endeavor has substantial merit and national importance, and (2) that the petitioner is well-positioned to advance the proposed endeavor—the petitioner must satisfy the third prong. This step requires the USCIS officer to assess whether the benefits of granting a waiver outweigh the advantages of requiring a job offer and labor certification. The labor certification process ensures that hiring foreign workers does not negatively impact the job opportunities, wages, and working conditions of U.S. workers. However, in certain cases, the national interest is better served by waiving this requirement. For example, in situations where an individual’s work has the potential to drive innovation, generate employment opportunities, or enhance critical industries that serve the broader public good, the USCIS officer is more likely to agree that the benefits of granting a waiver outweigh the advantages of requiring a job offer and labor certification.
To satisfy the third prong, a petitioner must show that his proposed endeavor and his ability to advance it provide benefits to the nation that justify bypassing the labor certification process. The USCIS officer evaluating the petition will determine whether the national benefits of the petitioner's work outweigh the protections offered by the labor certification process.
Key Considerations in Evaluating the Third Prong
USCIS officers analyze multiple factors to determine whether the petitioner meets the third prong. The following are key aspects considered during this evaluation:
Whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.
If obtaining a labor certification is impractical due to the nature of the proposed endeavor or the individual's qualifications, it strengthens the case for an NIW. This is particularly relevant for individuals with unique knowledge or skills that are not easily articulated in a labor certification. If an individual can convince the USCIS officer that hepossesses unique knowledge and skills that serve the national interest but are not easily articulated in a labor certification, his argument for satisfying the third prong may be bolstered. And, due to the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his own, to secure a job offer from a U.S. employer. As a result, he has a strong argument that the job offer and labor certification requirements should be waived.
Whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions.
A petitioner can demonstrate that his contributions to the United States are significant enough that even if qualified U.S. workers are available, the national interest is still best served by allowing the petitioner to work and contribute in the United States. If the USCIS officer considers the petitioner’s endeavor in his field, along with his level and extent of expertise, to have the potential to provide significant benefits to the United States, the officer may determine that waiving the job offer requirement is in the national interest.
Whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
If the petitioner's work addresses an urgent national need—such as a public health crisis, economic revitalization, or scientific breakthroughs—the USCIS may determine that waiting for a labor certification process would be detrimental to national interests. For example, medical professionals working on pandemic response or cybersecurity experts addressing national security threats have a strong argument that they qualify under this factor.
Specific Factors that Strengthen a Petitioner’s Case
In addition to the general considerations outlined in Matter of Dhanasar, USCIS may consider specific factors, such as:
Addressing A Common Misconception
Many petitioners mistakenly believe that a national labor shortage in their field is sufficient to satisfy the third prong. However, evidence of a labor shortage alone does not meet the standard for an NIW. Instead, the petitioner must provide a compelling argument demonstrating how his specific contributions outweigh the benefits of requiring a labor certification.
Conclusion
The third prong of the EB-2 NIW test is a crucial component in demonstrating that a foreign national’s work is of such significance to the United States that waiving the labor certification and job offer requirements is justified. By presenting clear, well-documented evidence that their endeavor benefits the nation in a way that outweighs the labor certification process, petitioners can strengthen their NIW applications. As immigration policies and adjudication trends evolve, working with an experienced immigration attorney can further enhance an applicant’s chance of success in obtaining an EB-2 NIW approval.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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(03/20/2025)