NIW Third Prong: Balancing the Benefit to the United States

The third prong of Matter of Dhanasar requires an EB2 National Interest Waiver applicant to establish that, on balance, it would be beneficial to the United States to waive the normal job-offer and permanent labor certification requirements.

This requirement is sometimes overlooked because applicants focus heavily on national importance and their professional qualifications. The third prong is a separate part of the NIW analysis and should be addressed directly.

For the complete framework, review NIW for researchers.

What Does the Third Prong Require?

Once USCIS determines that:

  1. the proposed endeavor has substantial merit and national importance; and
  2. the applicant is well positioned to advance the endeavor;

USCIS considers whether the benefits of granting the waiver outweigh the benefits that ordinarily come from requiring a permanent job offer and labor certification.

Why Does Labor Certification Normally Exist?

The permanent labor certification process generally protects U.S. workers by requiring an employer to test the labor market and comply with Department of Labor requirements before sponsoring many EB2 workers.

NIW allows USCIS to waive those normal requirements when the national interest is better served by allowing the applicant to proceed without them.

The Third Prong Is a Balancing Test

The applicant does not necessarily have to prove that labor certification is impossible.

USCIS evaluates whether the applicant’s proposed endeavor and the applicant’s ability to advance that endeavor, considered together, provide benefits to the United States sufficient to justify waiving the normal process.

Do You Have to Prove There Are No Qualified U.S. Workers?

No.

Matter of Dhanasar specifically permits consideration of whether the United States would benefit from the applicant’s contributions even if other qualified U.S. workers are available.

An NIW petition should therefore not be treated as a traditional labor-shortage case.

Factor 1: Is Labor Certification Impractical?

One relevant consideration is whether, because of the nature of the applicant’s qualifications or proposed endeavor, obtaining a traditional job offer or labor certification would be impractical.

This can be particularly relevant where the proposed endeavor:

Researchers With Multiple Collaborations

Academic and scientific research frequently crosses institutional boundaries.

A researcher may collaborate with universities, government laboratories, private companies and other research groups while continuing the same proposed endeavor.

The petition can explain why flexibility may benefit the endeavor more than tying the applicant to one employer-sponsored position.

Postdoctoral Researchers

Postdocs often work through temporary appointments while building a continuing research program.

The third-prong analysis may explain why the national interest is served by allowing the applicant to continue the endeavor across future research positions rather than depending on one employer’s labor certification process.

Review NIW for postdoctoral researchers.

Factor 2: Valuable Contributions Even if U.S. Workers Are Available

Another relevant consideration is whether the United States would still benefit from the applicant’s contributions even assuming other qualified U.S. workers are available.

This is especially important for research-based NIW cases.

The question is not simply whether another scientist or engineer could fill a position. The petition may demonstrate that this particular applicant brings a record, expertise or research program capable of producing additional benefits to the United States.

Evidence of Valuable Prospective Contributions

Depending on the case, useful evidence may include:

Factor 3: Urgency of the National Interest

USCIS may also consider whether the national interest in the applicant’s contributions is sufficiently urgent to favor foregoing the labor certification process.

Urgency is one possible factor rather than a universal requirement for every NIW petition.

Depending on the facts, urgency may arise in work related to:

You Do Not Need Every Third-Prong Factor

The Dhanasar considerations are not a rigid checklist requiring every applicant to prove every possible factor.

The petition should identify the considerations that actually fit the applicant’s facts and explain why they favor granting the waiver.

Can an Employer Still Offer a Job?

Yes.

An applicant is not disqualified from NIW merely because the applicant has a job offer or because an employer could potentially pursue labor certification.

The existence of employment can provide useful evidence showing how the applicant intends to advance the proposed endeavor.

Can an Employer Have Started PERM?

The possibility that an employer could pursue or has pursued labor certification does not by itself bar an NIW request.

The NIW analysis separately asks whether the national interest justifies waiving those normal requirements.

NIW Is Not an Easier Substitute for PERM

An applicant should not argue simply that NIW is faster, easier or more convenient than labor certification.

The third prong focuses on benefit to the United States, not convenience to the applicant or employer.

Connect the First Two Prongs to the Third

A strong third-prong argument often builds naturally from the first two prongs.

If the petition establishes that:

the third prong can explain why the United States benefits from allowing that work to proceed without requiring the applicant to depend on one labor-certified position.

Research Flexibility

Researchers may change universities, laboratories, funding sources or institutional affiliations while continuing the same underlying endeavor.

Where appropriate, the petition may explain why this flexibility helps advance the research rather than merely benefiting the applicant personally.

Government Interest

Government funding, agency collaboration or letters from interested government entities may be particularly relevant where they demonstrate the value of the applicant’s prospective contributions.

Critical and Emerging Technology

For researchers working in areas important to U.S. competitiveness or national security, the petition may explain why continued access to the applicant’s expertise provides national benefits even if other qualified professionals also work in the field.

Third Prong Versus National Importance

National importance and the third prong are related but separate.

The first prong evaluates the prospective impact of the proposed endeavor.

The third prong asks whether, considering the endeavor and the applicant together, the United States benefits from waiving the normal job-offer and labor-certification requirements.

Third Prong Versus Well Positioned

Being well positioned does not automatically establish the third prong.

The petition should move beyond showing that the applicant is qualified and explain why allowing the applicant to advance the endeavor without the normal labor-certification structure benefits the United States.

Common Third-Prong Problems

NIW RFE Guide for Researchers

Review how to respond to a researcher NIW RFE under the three Matter of Dhanasar prongs.

Primary Legal Sources

Explain Why the Waiver Benefits the United States

The third prong should not be treated as an afterthought. A strong petition explains why the applicant’s particular endeavor and demonstrated ability to advance it create benefits that justify waiving the normal job-offer and labor-certification requirements.

Contact The Messersmith Law Firm to request an NIW evaluation.

This page provides general immigration information and is not legal advice.