The Third EB-2 NIW Prong: How Does USCIS Analyze the Waiver of a Job Offer and Labor Certification?

Under the third EB-2 NIW prong, USCIS asks whether, on balance, it would benefit the United States to waive the job offer and, as a consequence, the permanent labor certification. This is not about proving one isolated factor or following a formula. The analysis compares the benefits of the waiver with the benefits that normally result from the job-offer and labor-certification process.

This step comes only after two earlier determinations. First, the person must qualify for EB-2 as an advanced-degree professional or a person of exceptional ability under the applicable terms. Then, the person must establish the three Matter of Dhanasar prongs: substantial merit and national importance of the proposed endeavor; being well positioned to advance it; and a favorable balance for the waiver.

What is being waived in an NIW

In the ordinary employment-based EB-2 path, a U.S. employer seeks the person's services and, in general, a permanent labor certification is required. That process seeks to determine whether there are able, willing, qualified, and available U.S. workers for the opportunity and whether the employment will not adversely affect the wages and working conditions of similarly employed workers.

8 U.S.C. §1153(b)(2)(B)(i) allows the job-offer requirement to be waived when the authority considers the waiver to be in the national interest. In an NIW, waiving the job offer also waives the related labor certification.

This helps explain why there is a third prong. Protecting the labor market is a legitimate public interest. The possibility of a waiver recognizes that, in some cases, other national benefits may carry greater weight. The decision must explain that balance, rather than merely repeat that NIW waives PERM.

The third-prong question is a balancing inquiry

The *Matter of Dhanasar* precedent, decided by the Administrative Appeals Office in 2016, reformulated the NIW test. The question became whether, overall, waiving the job offer and labor certification would benefit the United States.

Current USCIS guidance explains that the officer considers the endeavor or professional project the person intends to pursue in the United States and how well positioned the person is to advance it. Taken together, these elements must indicate national benefits that outweigh the benefits normally produced by labor certification.

The prongs remain distinct. Establishing national importance and being well positioned does not make the third prong automatic. At the same time, the balancing does not occur in a vacuum: the nature of the endeavor, the ability to carry it out, and the expected contributions help explain why the waiver would be advantageous in that case.

What factors may be considered

Dhanasar and the Policy Manual identify factors that may be relevant. They include:

• the impracticality of obtaining a job offer or certification because of the nature of the person's qualifications or proposed endeavor;

• the benefit the contributions would bring to the United States even assuming other qualified workers are available;

• the urgency of the national interest in the contributions, when it genuinely exists;

• knowledge or skills that cannot be adequately captured by the minimum requirements of a labor certification;

• potential for considerable economic impact; and

• potential to create jobs.

This list is not a checklist. A petition may support the third prong through one or more relevant factors, as long as the record supports the balance. Urgency, job creation, and impracticality, for example, are not universal requirements. Nor is there a number of factors that guarantees an outcome.

Impracticality does not mean absolute impossibility

The precedent mentions situations in which the very nature of the endeavor makes obtaining a job offer impractical. An entrepreneur or inventor developing a project independently is one possible example. Another involves knowledge or skills that are difficult to express in the minimum requirements of a certified opportunity.

This does not create a rule that every self-employed person satisfies the third prong. Nor is it enough to say that an employer prefers not to assume the time, cost, or procedure. The explanation must connect the difficulty to the proposed endeavor, the relevant qualifications, and the national benefit of the waiver.

Benefit even when qualified workers are available

The third prong can be established without claiming that no one in the United States can work in the same area. The question may be different: even assuming qualified workers are available, do that person's specific contributions have sufficient value for the waiver to benefit the country?

This formulation avoids turning NIW into an abstract comparison between the person and unidentified U.S. workers. It also prevents the shortcut of treating an occupational shortage, by itself, as proof of the prong. A nationwide shortage of professionals may provide context, but it does not automatically explain the value of an individual's endeavor or the balance in favor of the waiver.

Urgency must be concrete

In some cases, the national interest may be time-sensitive, such as a contribution related to public health or safety. When urgency is invoked, the evidence must show why the benefit is not merely important in general, but requires a response that is relevant in time.

Not every endeavor of national importance is urgent. Creating artificial urgency or confusing an employer's priority with national urgency weakens the logic of the prong.

What the third prong does not require

When it replaced the prior test, Dhanasar eliminated two requirements that had caused confusion. The petition does not need to:

• show that the national interest would be harmed if labor certification were required; or

• prove that the person would serve the national interest more than U.S. workers with the same minimum qualifications.

This does not remove labor-market protection from the analysis. It means the balance does not depend on a hypothetical comparison with unidentified individuals or on proving harm that the statute itself does not require.

A job offer also does not automatically preclude an NIW. The Policy Manual states that a person is not barred from the waiver because an employer has filed or could file for labor certification. The option of following the ordinary path is part of the context, but the result depends on the justification and evidence for the balance.

How Dhanasar applied the balance

In the case that gave rise to the test, the person intended to continue research on aerospace propulsion systems. The AAO considered, together, advanced education, experience in a highly specialized area, a significant role in projects, implications for national security and competitiveness, and continuing interest and funding from government agencies.

It concluded that those contributions would benefit the United States even assuming other qualified workers were available. The example shows how the endeavor, the person's positioning, and the value of the contributions connect under the third prong.

It does not create a universal roadmap. A health professional, researcher, executive, or entrepreneur will have different endeavors, evidence, and reasons for a waiver. Copying documents or language from the aerospace case does not replace an individualized showing.

How to organize the explanation without creating a formula

A coherent analysis usually answers four questions:

1. What specific endeavor will be pursued in the United States?

2. What facts show that the person is well positioned to advance it?

3. What national benefits follow from the expected contributions?

4. Why, in light of those facts, does the waiver provide more benefit than the ordinary job-offer and certification requirement?

The answers must connect with one another. A strong résumé without a connection to the endeavor does not resolve the balance. The general importance of a field also does not explain why certification should be waived for that person. And difficulty obtaining sponsorship, without a connection to the national interest, does not turn convenience into a waiver.

The third prong does not produce an automatic conclusion

The evidentiary standard used in these petitions is the preponderance of the evidence: the record must make the claim more likely than not. USCIS evaluates the relevance, probative value, credibility, and consistency of the evidence. Even when EB-2 classification and all three prongs are established, granting NIW remains discretionary.

For that reason, the value of the third prong lies in organizing a concrete justification, not in finding a keyword. An individual analysis must determine whether the facts support the prongs, whether the evidence confirms itself across the record, and whether the conclusion goes no further than the record permits.

To understand EB-2 NIW and assess how the proposed endeavor, positioning, and waiver relate in a concrete situation, learn about Linhares Law's EB-2 NIW practice area.