National Interest Waiver RFE · Dhanasar Prong Three
USCIS says the NIW balancing test has not been established?
The third NIW prong asks whether, on balance, it would be beneficial to the United States to waive the ordinary job offer and permanent labor certification requirements. It is a separate inquiry and should not be treated as automatic merely because the endeavor is nationally important.
Prong three asks why a waiver is beneficial in this particular case.
The EB-2 classification ordinarily contemplates a job offer and labor certification unless those requirements are waived in the national interest. Under Matter of Dhanasar, the petitioner must establish that, on balance, waiving those ordinary requirements would benefit the United States.
The analysis therefore should connect the nature of the proposed endeavor and the petitioner’s circumstances to the reason a waiver makes sense.
Common weaknesses in a prong-three presentation.
Repeating national importance.
Evidence that the endeavor is important addresses prong one. Prong three asks a different question: why should the normal job offer and labor certification requirements be waived on balance?
Assuming self-petitioning proves the waiver.
The desire to work independently, start a company, conduct research, or pursue multiple projects does not itself establish that a waiver benefits the United States.
Relying only on employer inconvenience.
The analysis should focus on the broader benefit of waiver in light of the endeavor, rather than simply the petitioner’s preference to avoid the normal employment-based process.
Using conclusory recommendation letters.
Statements that a waiver is “in the national interest” are more persuasive when the author explains the factual basis for that conclusion.
Factors may differ depending on the endeavor.
Dhanasar recognizes that the balancing analysis may consider practical circumstances surrounding the proposed work. Depending on the case, relevant considerations can include whether the nature of the endeavor makes it impractical to secure a traditional job offer or labor certification and whether the United States would still benefit from the petitioner’s contributions even if qualified U.S. workers are available.
The inquiry is flexible. The response should not mechanically recite factors that have little relationship to the case.
- Explain how the proposed endeavor is expected to operate in the United States;
- Identify why the normal employer-sponsored structure may not fit that endeavor;
- Explain the U.S. benefit of allowing the petitioner to advance the work without a permanent job offer;
- Connect the balancing argument to objective evidence already establishing the endeavor and the petitioner’s ability to advance it; and
- Address the actual concern expressed by USCIS rather than relying on generalized national-interest language.
The three NIW prongs should remain analytically distinct.
Prong One
Does the proposed endeavor have substantial merit and national importance?
Prong Two
Is this petitioner well positioned to advance that endeavor?
Prong Three
Would the United States benefit, on balance, from waiving the ordinary job offer and labor certification requirements?
A strong response explains the balance rather than stating the conclusion.
If USCIS says the third prong was not established, the response should identify precisely what reasoning the officer found missing. Supplemental evidence and legal argument should then explain why the particular facts of the proposed endeavor support waiver under the governing standard.