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Explore visasEB-2 NIWCommon RFE topics

Eligibility criteria

On balance, the waiver benefits the United States

Whether the factors for waiving the job offer and labor certification outweigh the reasons for requiring them (Dhanasar prong three).

What USCIS is questioning

  • Whether, on balance, it would benefit the United States to waive the job offer and labor certification that EB-2 normally requires.[1,2]

The legal standard

  • Matter of Dhanasar lets USCIS weigh factors such as whether a labor certification would be impractical, whether the U.S. would benefit even if qualified U.S. workers are available, and whether the national interest in your contribution is urgent. The test does not require showing harm to the national interest.[1]
  • The Policy Manual says a national labor shortage alone does not satisfy this prong, that an employer's ability to file a labor certification does not bar a waiver, and that an advanced STEM degree plus work on a critical and emerging technology plus being well positioned is a strong positive factor.[2]

How the request usually reads

  • Interpretation An RFE on this issue typically says the petition does not explain why the United States would benefit from waiving the labor certification, or relies only on a shortage of workers.[2,3]

Evidence petitioners often provide

  • Interpretation An explanation of why a labor certification would be impractical (for example, for a self-employed entrepreneur); evidence of urgency or a time-sensitive benefit; evidence of benefit even if U.S. workers are available; and letters from interested government agencies.[2,4]

Where responses go wrong

  • Treating prong three as automatic once prongs one and two are met; the petitioner must show that the factors favoring a waiver outweigh those supporting a labor certification.[2]
  • Relying only on evidence of a national shortage in the occupation.[2]

AAO decisions on this issue

  • Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

    The third prong weighs factors such as the impracticality of a labor certification, benefit despite available U.S. workers, and urgency; unlike the prior test, it does not require showing harm to the national interest.

This information is for general informational purposes and is not legal advice. It does not create an attorney-client relationship and does not predict the outcome of any individual case.

Sources

  1. 1.Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)USCIS Administrative Appeals Office (published in DOJ EOIR Virtual Law Library) · AAO decision · Published Dec 27, 2016 · Checked Sep 27, 2026
  2. 2.USCIS Policy Manual, Volume 6, Part F, Chapter 5 — Advanced Degree or Exceptional AbilityUSCIS · USCIS Policy Manual · Checked Sep 27, 2026
  3. 3.USCIS Policy Manual, Volume 1, Part E, Chapter 6 - EvidenceUSCIS · USCIS Policy Manual · Checked Sep 27, 2026
  4. 4.Employment-Based Immigration: Second Preference EB-2 (includes National Interest Waiver filing tips)USCIS · Agency page · Checked Sep 27, 2026