Documenting Why Waiving the Job Offer Benefits the United States (EB-2 NIW, Dhanasar Prong 3)

What prong three actually asks the officer to weigh

The third prong of the framework set out in Matter of Dhanasar is a narrow, specific question: on balance, would it benefit the United States to waive the requirement of a job offer and the labor certification process for this petitioner? That is the entire inquiry. It is not a second pass at prong one, which concerns the substantial merit and national importance of the proposed endeavor, and it is not a second pass at prong two, which concerns whether the petitioner is well positioned to advance that endeavor. By the time an officer reaches prong three, the importance of the work and the petitioner's capacity to carry it out are treated as separately established. What remains open is a distinct, narrower question about the labor certification mechanism itself — whether running the petitioner's case through that process, which tests whether a specific U.S. employer can fill a specific position with a U.S. worker, serves any purpose here, or whether skipping it serves the country better.

A balancing test, not a tribute

Treat prong three as weighing two things against each other: whatever protective function the labor certification process would normally serve, against the cost of requiring it in this case. The officer is not asking how talented, accomplished, or well-published the petitioner is — that evidence belongs elsewhere in the petition. Here, the officer is looking for a reasoned argument, supported by evidence, about the waiver itself: why the standard process is a poor fit, or why the national benefit of proceeding without it outweighs the process's usual purpose. Superlatives about the petitioner's abilities do not answer this question and do not substitute for evidence addressed to it.

Identify the two arguments USCIS accepts and which one fits your case

Matter of Dhanasar lays out two distinct lines of reasoning for the waiver prong. Petitions that try to run both at once, in general terms, tend to read as padding rather than argument. Pick the one that matches the actual structure of your work.

Argument one: the labor certification process is poorly suited to your contribution

This argument says the standard labor market test — a single employer posting a fixed job and testing the local labor market against it — cannot meaningfully capture what you do. It fits people whose work spans multiple employers or institutions, does not map to a conventional job title, is interdisciplinary, or is entrepreneurial (you are the employer, not the applicant for one). It also fits work serving a national interest that no single prospective employer's vacancy would reflect — public health surveillance, open-source infrastructure, standard-setting work, and similar activity that is not captured by a job posting.

Argument two: the national benefit outweighs the labor market test even if others are equally qualified

This argument concedes, for the sake of discussion, that other qualified workers may exist, and argues instead that requiring labor certification would still work against the national interest — because of urgency (a grant deadline, a trial enrollment window), because pinning you to one employer would disrupt ongoing funded work, or because the work requires geographic or employer flexibility that PERM's single-employer, single-location structure does not accommodate.

Choosing between them

Look at how your career is actually organized — not how you'd like it to sound. If you hold one job with one employer, argument two usually fits better. If you move across projects, entities, or roles, argument one usually fits better. Build the exhibit set around the one that matches.

Build the evidence set for the 'poorly suited to the labor market test' argument

If this is the argument that matches the petitioner's work, assemble documents that show, concretely, why a standard vacancy posting and prevailing-wage determination could not capture what the petitioner does.

Independent expert letters

Obtain letters from people who are not supervisors or anyone with a financial interest in the petitioner's continued employment — journal editors, conference organizers, collaborators at other institutions, officers of professional societies. Each letter should explain, in the expert's own analysis, why the petitioner's role does not correspond to a fixed job description: why no single employer could advertise the position, why the work spans functions a PERM vacancy would not combine, or why the role did not exist as a defined position before the petitioner created it.

Evidence of concurrent or portfolio-style work

Collect contracts, consulting agreements, Form 1099s, grant subcontracts, and letters confirming multiple simultaneous affiliations. These should show the work is structured around projects and relationships rather than a single employer-employee arrangement.

Evidence the field lacks a defined labor market category

Compare the petitioner's actual duties against the closest O*NET-SOC code and note where the match fails — missing functions, combined specialties, or duties that span two or more codes. Include job postings for the nearest comparable title to show the mismatch directly.

Self-employment or founder documentation

Where applicable, include incorporation documents, cap table, EIN registration, or business licenses.

Label each document with the proposed exhibit number and a short descriptive filename, and log it in the index with a one-line note tying it to this argument specifically.

Build the evidence set for the 'national benefit outweighs the labor market test' argument

This argument accepts, for the sake of discussion, that others could perform similar work, and instead documents why tying the petitioner to a single sponsoring employer through the labor certification process would cost the United States something it cannot afford to lose. The evidence has to make that cost concrete.

Time-sensitivity and urgency

Collect grant award letters showing funding periods and deadlines, clinical trial protocols with enrollment or milestone dates, and correspondence from funding agencies describing renewal cycles. Annotate each document with the specific date or window that labor certification's fixed timeline would conflict with.

Geographic and employer flexibility

Gather evidence that the work spans multiple sites or institutions: multi-site study protocols, fieldwork schedules, collaboration agreements, or records of remote work across organizations. This shows why a single-employer, fixed-location job offer does not match how the work is actually performed.

Disruption to ongoing projects

Obtain letters from collaborators describing what would happen to a specific project if the petitioner's work were interrupted or relocated, alongside grant award letters and project timelines showing committed milestones. These should describe operational consequences, not the petitioner's general value.

Sectoral need data

Cite named, dated sources the officer can independently verify: Bureau of Labor Statistics occupational outlook data, workforce shortage reports from the relevant federal agency, or published statements from a professional association or government body on shortages in the field. Avoid paraphrasing from memory — quote the figure and cite the publication, agency, and date directly, and include a copy or link in the exhibit set.

Draft the personal statement and expert letters that tie the evidence together

Structuring the petitioner's statement

The portion of the personal statement addressing prong three should follow a fixed shape, not a free-form narrative:

1. Opening paragraph — state plainly which of the two arguments is being made (labor certification mismatch, or national benefit outweighing the process) and why that argument fits the petitioner's work rather than the other one.
2. Application paragraphs (2–4) — walk through the petitioner's actual projects, affiliations, or funding timelines, citing exhibit numbers directly in the text ("as shown in Exhibit 9, the project spans three institutions with no single employer of record"). Each paragraph should tie to specific documents already in the index, not to general field-level claims.
3. Closing paragraph — summarize how the evidence supports the balancing argument. Describe the facts and their relationship to the waiver question; do not use language that predicts or asserts an outcome.

What expert letters need to do independently

An expert letter should not read as a restatement of the petitioner's own statement in a different signature block. Each letter should:

• explain, in the expert's own analysis, why the work does not map to a standard labor certification process or why timing/geography make the process impractical;
• draw on the expert's direct knowledge of the field or project, not on text supplied by the petitioner;
• be dated and signed by the expert;
• identify the expert's credentials (title, institution, years in the field);
• state the expert's relationship to the petitioner (collaborator, former supervisor, funder, independent peer) so the officer can weigh independence.

Letters lacking a date, signature, or stated relationship are routinely flagged as incomplete.

Assemble the prong-three exhibit index

Build a standalone index for the prong-three evidence, separate from (or clearly marked within) the overall exhibit list for the petition. The officer should be able to read the index alongside the personal statement and confirm every citation without hunting through the full exhibit stack.

Table layout

File naming

Use a scheme that mirrors the index exactly, so a reviewer can move from statement citation to index row to file without translation:

Exh14_LetterDrChen_Urgency.pdf Exh15_ONETComparison_LaborMarketMismatch.pdf

Keep the exhibit number first, a short author or document tag second, and a one- or two-word argument tag last. Do not renumber exhibits after the statement is finalized — if a document is added or dropped, renumber the full set and update every cross-reference in the statement and letters before filing.

Common mistakes that draw an RFE on prong three

Re-arguing merit instead of the waiver

The most common failure is restating how important or impressive the petitioner's work is — material that belongs under prongs one and two — without ever addressing why requiring labor certification, specifically, works against the national interest. An officer reading a prong-three section that reads like a restated prong-one argument will flag it as unaddressed.

Only employer-authored letters

If every letter in the packet comes from a current or former supervisor, the officer has no independent voice confirming the labor-market mismatch or urgency claim. Supervisor letters read as self-interested on this specific question, even when accurate.

No clear choice of argument

Submitting vague language that gestures at both the poorly-suited argument and the national-benefit argument, without stating which one the petition relies on, leaves the officer to guess. A reasoned argument requires picking one and applying it consistently across the statement, the letters, and the index.

Shortage claims without data

Asserting a general