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Demonstrate that waiving the job offer and labor certification requirement would be in the national interest of the United States

The EB-2 National Interest Waiver (NIW) is an attractive option for highly skilled professionals who wish to bypass the traditional labor certification process and job offer requirements. To qualify for an NIW, petitioners must satisfy three prongs established by the precedent decision in Matter of Dhanasar, issued by the Administrative Appeals Office (AAO) in 2016. This article focuses on the third prong, which asks whether, "on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements."

What is the “On Balance” Test?​

The third prong requires the petitioner to demonstrate that waiving the job offer and labor certification requirement would be in the national interest of the United States. In essence, this prong involves a balancing test where the potential benefits of the applicant’s work to the U.S. must outweigh the advantages of requiring a job offer and labor certification.

The labor certification process is designed to protect U.S. workers by ensuring that there are no qualified U.S. workers available for the job offered to the foreign worker. By waiving this requirement, the U.S. government is essentially prioritizing the foreign national’s contributions over the protection offered to U.S. workers through the labor certification process.

Key Considerations for the Third Prong​

To successfully satisfy the third prong, the petitioner must present a compelling case that the national interest in the individual’s work outweighs the need for labor certification. This typically involves demonstrating the following:

  1. National Importance of the Work:

    • The petitioner’s work should have substantial merit and national significance. It should be shown that the work addresses an issue of considerable importance to the United States, such as economic growth, public health, or scientific advancement.

  2. Impracticality of the Labor Certification Process:

    • The petitioner must argue that requiring labor certification would be impractical given the nature of their work. For instance, if the petitioner’s work is highly specialized or if there is a lack of qualified U.S. workers in the field, this should be emphasized.

  3. Harm to U.S. Interests:

    • The petitioner should explain how the U.S. would be harmed if the labor certification requirement were enforced. For example, if the delay caused by the labor certification process would hinder the timely implementation of a critical project, this would be an argument in favor of waiving the requirement.

  4. Broader Impacts:

    • The petitioner should outline the broader impacts of their work on the U.S. economy, society, or public welfare. This could include creating jobs, advancing technology, or addressing public health challenges.

Proving the Third Prong: Strategies and Evidence​

Meeting the burden of proof for the third prong requires a well-structured argument supported by robust evidence. Below are some strategies and types of evidence that can strengthen your petition:

  1. Expert Letters and Testimonials:

    • Letters from experts in your field can be invaluable in demonstrating the significance of your work and the impracticality of the labor certification process. These letters should be from individuals who are well-recognized in your field and who can provide specific examples of how your work benefits the U.S.

  2. Documentation of Impact:

    • Provide tangible evidence of the impact of your work. This could include published articles, patents, media coverage, and records of funding or grants received for your work. If your work has led to job creation, economic growth, or other measurable benefits, include documentation to substantiate these claims.

  3. Comparative Data:

    • If possible, provide comparative data showing the lack of qualified U.S. workers in your field. This can include labor market analysis, job postings, or studies demonstrating the specialized nature of your work.

  4. Policy or Government Reports:

    • If your work aligns with or supports U.S. government policies or initiatives, include relevant reports or policy documents. For example, if your work contributes to a federal initiative like renewable energy or public health, referencing government reports can bolster your argument.

  5. Project Timelines and Deadlines:

    • If your work is time-sensitive and the labor certification process would cause delays, provide evidence of project timelines, deadlines, or time-sensitive goals. This could include project plans, contracts, or letters from employers or clients.

  6. Economic and Social Contributions:

    • Outline how your work contributes to the U.S. economy or addresses societal needs. This could involve economic forecasts, job creation statistics, or testimonials from industry leaders.

Conclusion​

The third prong of the EB-2 NIW petition process requires a nuanced argument that balances the national interest in the petitioner’s contributions against the traditional protections afforded to U.S. workers. By presenting a compelling case that highlights the importance, urgency, and unique nature of their work, petitioners can increase their chances of satisfying this requirement.

When preparing your petition, it is essential to be thorough and strategic in gathering evidence. A well-prepared petition not only demonstrates the petitioner’s qualifications but also clearly articulates why waiving the job offer and labor certification requirements serves the best interests of the United States.