National Interest Waivers: Understanding Dhanasar Prong Three

Written By Kevin Yeh

What is a National Interest Waiver?

The EB-2 National Interest Waiver (NIW) provides a pathway to a green card for foreign nationals who hold advanced degrees or possess exceptional ability and whose work is in the national interest of the United States.

Unlike most employment-based green card categories, the NIW allows individuals to petition without employer sponsorship. In a time when layoffs are prevalent and the PERM process has ground to a halt for many employers, the NIW offers a safety line.

USCIS determines whether an endeavor is in the “national interest” using the three-prong test from Matter of Dhanasar, an Administrative Appeals Office (AAO) decision from 2016. Under Dhanasar, a petitioner must show that:

  • Prong One: Their proposed endeavor has both substantial merit and national importance;

  • Prong Two: They are well positioned to advance the proposed endeavor; and

  • Prong Three: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

How does USCIS analyze Prong Three?

When evaluating an individual’s arguments and evidence under Prong Three, USCIS weighs the benefits of an individual's contributions against the benefits inherent in the labor certification process (i.e., PERM), which is designed to protect similarly employed U.S. workers.

USCIS may consider the following factors when evaluating Prong Three:

  • Whether, in light of the nature of the person’s qualifications or proposed endeavor, it would be impractical to obtain a labor certification;

  • Whether the United States would still benefit from the foreign national's prospective contributions even if other qualified U.S. workers are available;

  • Whether the national interest in the person’s contributions is sufficiently urgent, such as a time-sensitive public health or safety benefit offered by the endeavor;

  • 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 the labor certification;

  • Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and

  • Whether the person’s endeavor may lead to potential job creation.

Additionally, for those with STEM degrees, USCIS considers the following facts to be “strong positive factor[s]” under Prong Three:

  • The person possesses an advanced STEM degree, particularly a Ph.D.;

  • The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and

  • The person is well positioned to advance the proposed STEM endeavor of national importance.

In the past few years, USCIS frequently issued Requests for Evidence (RFE) concerning Prongs One and Two, but less often for Prong Three. However, as a result of USCIS increasing scrutiny for NIWs beginning in 2023, RFEs questioning Prong Three (and RFEs in general) have become more common. In my experience, Prongs One and Three now go hand-in-hand, meaning an RFE will likely question both rather than just one.

Don’t Forget Prong Three

A recent AAO decision, In Re: 33959649 (AAO March 5, 2025), highlights the present need for a distinct and detailed Prong Three argument that is supported by evidence. Indeed, Prong Three was the sole reason for denial in this case, despite the AAO’s rare reversal of USCIS’s findings on the first two Dhanasar prongs.

The petitioner had made two arguments under Prong Three. First, the petitioner asserted that it would be impractical for him to secure a job offer because, at the time of filing, he was completing his doctoral degree, "a position that is inherently temporary" and the regulations require an offer of permanent employment. However, the AAO rejected this argument, noting that one of the petitioner’s recommenders expressed an intention to hire him as a research scientist.

To start, this was not a strong argument because it was not anchored to an aforementioned factor. The “impracticability” factor of securing a job offer is not the same as “impracticability” of a labor certification due to the person’s qualifications or proposed endeavor. Further, the petitioner must have misread the regulations when he claimed that an offer of permanent employment is required for an NIW. In fact, an offer an employment is not required at all – one of the main benefits of the NIW. Finally, the petitioner’s argument was undermined by his own evidence, highlighting the importance of a consistent narrative.

Second, the petitioner argued that “there is an urgent national interest in the petitioner’s research because his proposed endeavor involves critical and emerging technologies and computer vision systems for commercial and defense AI applications.”  While the AAO acknowledged the national importance and critical nature of the petitioner’s work, it found that the petitioner did not establish that the national interest in his contributions was sufficiently urgent to warrant forgoing the labor certification process. The supporting letters, while praising his accomplishments and attesting to the national importance of his work, did not explicitly state that the national interest was so urgent that it could not wait for him to obtain a labor certification.

Urgency is indeed a factor that USCIS considers under Prong Three. But a petitioner’s argument needs to be specific and supported by evidence. Unfortunately, we do not have access to the full record, so it is not clear what evidence, if any, the petitioner submitted in support of Prong Three. The AAO’s analysis suggests that the petitioner did not present evidence specifically addressing Prong Three. To be sure, the weightiness of a petitioner’s endeavor and contributions is often sufficient for Prong Three. But do not expect USCIS to read between the lines of your evidence, extrapolate, or accept bare assertions. Merely rehashing arguments presented in Prongs One and Two without explicitly addressing Prong Three’s requirements or presenting evidence is not enough.

Lastly, it does not appear that the petitioner leveraged his PhD degree to argue that, when combined with his endeavor, they are “strong positive factor.” Or that the petitioner asserted that he had a unique combination of knowledge and skills that cannot be captured in a labor certification. The petitioner may have left some arguments on the table.

The Takeaway for NIW Petitioners

The case above serves as a reminder that Prong Three should not be an afterthought and that a consistent narrative is crucial for an NIW application. Prevailing on Prongs One and Two does not automatically mean you are entitled to prevail on Prong Three. While satisfying Prongs One and Two is often a heavier lift, Prong Three requires its own distinct line of argumentation and evidence. Further, simply working in a critical field like artificial intelligence may not satisfy the Prong Three urgency requirement.

Petitioners must clearly articulate and support with evidence why the benefits of their work outweighs to benefits inherent in the labor certification process. Don't trip at the finish line; Prong Three is the final hurdle in demonstrating that your work is in the national interest.

Kevin Yeh