In Depth Look at the Third Prong of Dhanasar: Beneficial to the United States
The EB-2 NIW offers foreign professionals a unique opportunity to bypass the labor certification process by demonstrating the substantial benefits of their work to the United States. While the first two Dhanasar prongs establish the merit and positioning of the petitioner, the third prong requires a delicate balancing act that demonstrates why the United States would benefit more from waiving traditional labor protections than from maintaining them.
NIW Eligibility Criteria: The Three Dhanasar Prongs
In 2016, the United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) made an important decision in Matter of Dhanasar. This decision established the three Dhanasar prongs that petitioners must meet to qualify for a National Interest Waiver.
The Matter of Dhanasar framework consists of three prongs:
- The proposed endeavor has both substantial merit and national importance
- The foreign national is well positioned to advance the proposed endeavor
- It would be beneficial to the United States to waive the job offer and labor certification requirements
Prong 3: Balancing National Interest and Labor Certification Requirements
The third prong asks a fundamental question: On balance, would it benefit the United States to remove the job offer and permanent labor certification requirements?
Understanding how the third prong differs from the other Dhanasar prongs is crucial for success. Once officers have determined that the petitioner has met the first two Dhanasar prongs, they analyze the third prong.
This final prong requires the petitioner to demonstrate that the inherent national interests in granting the waiver outweigh the requirements of a job offer and labor certification. You must show that your entry to the United States will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
In Dhanasar, the AAO emphasized that the third prong analysis requires an evaluation of whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, the factors in favor of granting the waiver outweigh those supporting the traditional requirements for a labor certification. Unlike the previous third prong in NYSDOT, this new approach “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.”
Key Factors USCIS Considers for Prong 3
The AAO outlined several factors that petitioners may submit evidence for, including:
Primary Considerations
The Impracticality of Labor Certification: This factor examines whether obtaining a labor certification would be practically impossible or counterproductive. For example, entrepreneurs who are self-employed in a manner that generally does not adversely affect U.S. workers, or where the petitioner establishes or owns a business that provides jobs for U.S. workers, may find little benefit from the labor certification process. Similarly, if a Petitioner is employed by a U.S. company, their employer may not be able to sponsor a labor certification due to individualized circumstances, but the Petitioner’s work may still be inherently important to both the employer and the country despite the inability to access sponsorship.
Benefit Despite Available U.S. Workers: Even if other qualified U.S. workers are available, the United States would still benefit significantly from the foreign national’s specific contributions. This factor recognizes that some individuals bring unique value that is more important than the availability of domestic workers.
Sufficiently Urgent National Interest: The national interest in the person’s contributions is sufficiently urgent to warrant foregoing the labor certification process, such as maintaining U.S. competitiveness in STEM fields or addressing critical public health needs. While this factor often is confused or seen as co-mingling with the “Benefit despite available US workers” consideration, it is important to remember that they are distinct and separate considerations despite any overlap that may be beneficial.
Specific Considerations
The framework also recognizes more nuanced scenarios:
- Urgency Factors: Whether urgency, such as public health or safety concerns, warrants foregoing the labor certification process
- Unique Knowledge and Skills: Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by traditional labor certification
- Economic Impact: Whether the person’s endeavor has the potential to generate considerable revenue consistent with economic revitalization
- Job Creation Potential: Whether the person’s endeavor may lead to potential job creation for U.S. workers
Common Misconceptions About Prong 3
Misconception 1: High Impact Work Automatically Satisfies the Third Prong
Many petitioners assume that demonstrating significant impact or achievement automatically satisfies the third prong. However, impact alone is insufficient. The key is demonstrating that waiving labor certification requirements provides greater benefit to the United States than maintaining those protections would.
Misconception 2: Entrepreneurship Always Justifies Waiver
While entrepreneurs often have strong third prong arguments, simply being an entrepreneur doesn’t automatically satisfy this requirement. If you’re an entrepreneur, you must demonstrate that your specific endeavor provides benefits that outweigh the labor certification process, such as job creation, economic revitalization, or addressing market gaps that U.S. workers cannot fill.
Misconception 3: The Third Prong Requires Proving Harm from Labor Certification
Dhanasar explicitly states that the third prong “does not require a showing of harm to the national interest.” Instead, it requires a positive demonstration that waiving requirements would be beneficial to the United States.
Misconception 4: Statistical Data Alone is Sufficient
While statistical data about industry trends and national needs can support third prong arguments, it must be coupled with specific evidence about how the individual petitioner’s work addresses these needs in ways that justify waiving traditional labor protections.
Case Studies: Examples of Successful Prong 3 Arguments
The following examples demonstrate how successful petitioners have addressed all three Dhanasar prongs, with particular emphasis on crafting compelling third prong arguments that distinguish their cases from typical EB-2 applications.
Case 1: Bioinformatics Expert from the Netherlands
For a Dutch bioinformatics expert seeking to revolutionize software frameworks for the U.S. biotechnology sector, we demonstrated the national interest would be served by highlighting how our client would:
- Address talent gaps: Supply urgently needed STEM expertise, aligned with USCIS policy’s considerations for STEM professionals
- Economic contribution: Support economic growth, job creation, and innovation within the U.S. biotech industry
- Enhanced collaboration: Enable more efficient and effective partnerships with U.S. biotech companies through local presence
- Sector advancement: Drive technological progress in biotechnology, a field critical to U.S. competitiveness and healthcare outcomes
The key was establishing that the petitioner’s contributions would substantially benefit U.S. interests by strengthening technological capabilities within biotechnology and ultimately driving new discoveries, innovations, and improved patient outcomes.
Case 2: Geoscientist from Ghana
For a geoscientist from Ghana aiming to optimize nanomanufacturing processes using data-driven approaches, we emphasized how waiving the job offer and labor certification requirements would benefit the United States:
- Address research gaps: Provide critically needed expertise in nanomaterials, aligned with USCIS policy considerations for STEM professionals.
- Economic contribution: Contribute to U.S. economic growth, innovation, and job creation in the nanomaterials sector.
- Enhanced collaboration: Facilitate research collaborations with national laboratories, fostering U.S. leadership in nanomaterial innovation.
- Sector advancement: Drive technological advancements in nanomaterials, a field vital to U.S. competitiveness, energy initiatives, and technological leadership.
By demonstrating the concrete economic and scientific benefits his work would bring to the United States, we established that waiving the labor certification requirement would serve the national interest.
Case 3: Psychologist from Ecuador
For a school psychologist from Ecuador, whose endeavor is to design and implement psycho-educational programs for mental health and disability support, we highlighted the critical need for the client’s unique skillset:
- Address expertise gaps: Supply unique academic skills and success in psychology, tailored to design and implement psycho-educational programs for mental health and disability support in the U.S.
- Urgent societal need: Address the prevalent cause of poor life outcomes in American youth – mental health issues – with the client’s expertise
- Social impact: Enhance mental health understanding, mitigate disability discrimination, exclusion, bullying, violence, and substance use, without adverse effects on U.S. workers
Our argument emphasized that labor certification requirements were impractical for school psychologist positions that required her specific expertise and that her work contributed to urgent societal needs in the United States.
Case 4: Business Management Professional from Colombia
For a business management professional in the construction industry from Colombia, whose aim is to address the affordable housing shortage in the United States, we used the following arguments to show that the labor certification process is impractical:
- Address expertise gaps: Provide specialized technical and business management skills in the construction industry, leveraging innovative approaches to drive socio-economic progress and environmental preservation.
- National interest: Address the critical shortage of affordable housing, a widespread national concern, with urgent contributions that justify streamlined processing.
- Job market impact: Operate as a self-employed individual, ensuring that contributions do not adversely affect US workers, while driving progress in affordable housing development.
The labor certification process would have been impractical since the petitioner would be self-employed and his work therefore does not adversely affect U.S. workers.
Strategic Considerations for Prong 3
Successfully addressing the third prong requires a different approach than the other Dhanasar prongs. While the first two Dhanasar prongs focus on demonstrating merit and capability, the third prong centers on national benefit and practical considerations.
Start with National Context
Successful third prong arguments begin by establishing the broader national context. Use credible statistical data and government reports to demonstrate current trends and urgencies in relevant sectors. For example, if you are working in cybersecurity, reference national cybersecurity strategies and the documented shortage of qualified professionals.
Connect Individual Work to National Needs
Bridge the gap between national needs and your specific contributions. Don’t just cite statistics about a field. Instead, explain how your particular work addresses the identified gaps or challenges in ways that advance U.S. interests.
Demonstrate Impracticality or Urgency
Show why traditional labor certification would be impractical or counterproductive. This might involve:
- Explaining why your role doesn’t fit standard job categories
- Demonstrating time-sensitive opportunities that would be lost during certification
- Showing how your work creates jobs rather than displacing them
Provide Concrete Evidence of Benefit
Include specific examples of how your work has already benefited or will benefit the United States:
- Revenue generated or projected
- Jobs created or supported
- Patents filed or awarded
- Research outcomes and applications
- Industry partnerships and collaborations
Address the Balance Explicitly
Remember that this is a balancing test. Acknowledge the importance of labor protections while demonstrating why, in your specific case, the benefits of waiving these requirements outweigh their value. This shows understanding of the policy framework and respect for its underlying purposes.
Final Thoughts
Remember, the third prong isn’t about proving you’re better than U.S. workers. It’s about demonstrating that your specific contributions serve national interests in ways that traditional employment-based immigration processes cannot adequately capture or facilitate. When framed correctly, this distinction makes all the difference in achieving NIW success.
The most compelling third prong arguments combine thorough analysis of national needs with concrete evidence of individual impact, all while respecting the underlying purpose of labor certification requirements. By understanding this balance and crafting arguments that address it directly, petitioners can significantly strengthen their chances of NIW approval.
For more insight into the NIW process, we invite you to read our companion articles exploring Dhanasar‘s first and second prongs:
