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Many NIW applicants believe they must prove that no qualified U.S. worker can do their job. This is wrong, and it leads to weak Prong 3 arguments that are easy to reject. The Dhanasar standard asks whether the United States benefits from your contributions even if other qualified workers exist. This article explains why this framing matters and how to argue it correctly.
The Common Misconception About Prong 3
The old NYSDOT framework for national interest waivers included a third prong that required showing the petitioner would “serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” This invited petitioners to argue that there were no qualified U.S. workers in their field, or that they were uniquely superior to any American alternative. It was a difficult argument to make, difficult for USCIS to evaluate, and often unfair to highly qualified applicants whose contributions were genuinely valuable even if they were not the single most qualified person in the world.
Dhanasar eliminated this comparison. The new Prong 3 explicitly states that one of the factors USCIS evaluates is “whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions.” This is a dramatic shift. You are no longer required to prove you are irreplaceable or that the labor market is empty. You are required to show that your contributions are valuable enough to warrant the waiver regardless of what else the labor market contains.
Many applicants still write Prong 3 sections that argue labor shortages, uniqueness of skills, or absence of U.S. competitors. These arguments are not wrong to include, but they are no longer the core of the Prong 3 test. The core test is whether the national benefit of your contributions justifies waiving the job offer requirement, taking all relevant factors into account.
What ‘Benefit to the United States’ Means in This Context
The benefit the United States receives from your contributions is measured against the interest Congress had in mind when it created the labor certification requirement: protecting the domestic labor supply. USCIS balances these two interests in each individual case. The question is whether your specific contributions are valuable enough to outweigh the general policy goal of requiring a labor market test before hiring foreign nationals.
Your contributions are most persuasive for this purpose when they connect to documented national priorities. If your proposed endeavor addresses a challenge that the U.S. government has publicly identified as urgent — whether in cybersecurity, healthcare, energy, climate, public health, or any other domain — the national benefit of your contributions is anchored in documented federal recognition rather than your own assertion.
The Dhanasar decision provides the benchmark. The petitioner was found to satisfy Prong 3 because of “his record of successful research in an area that furthers U.S. interests,” leading the AAO to conclude that he offered “contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available.” This language — “of such value that” — tells you what you are aiming for: contributions that are genuinely valuable to identified U.S. interests, not just contributions that are valuable to your career or to your employer.
Structuring the National Benefit Argument
A well-structured national benefit argument under Prong 3 has three parts. First, identify the national interest your proposed endeavor serves. This should be the same national interest you established in Prong 1 — the documented federal priority, the identified policy challenge, or the recognized public need that your work addresses. You are not starting from scratch; you are building on what you already established.
Second, explain how your specific contribution serves that national interest in a way that generates real and durable value for the United States. This requires you to be specific about what your work produces. If you are developing testing frameworks for healthcare software, explain how those frameworks reduce the risk of medical data breaches, improve patient safety outcomes, and reduce the financial costs of software failures in the healthcare sector. These are concrete benefits with concrete national implications.
Third, explain why these contributions are valuable even if other qualified workers exist. This is the part of the argument that most petitioners omit. You might note that your proposed contributions address a documented gap in current practice — a gap that qualified U.S. workers in your field have not yet filled. You might note that your specific combination of expertise, methodology, and proposed approach is distinctive even within a field that has many qualified practitioners. Or you might note that the scale of the national need for work in your area is so significant that it exceeds the current capacity of available workers, meaning that your contributions are additive rather than competitive.
Labor Shortage Evidence: Helpful But Not Sufficient on Its Own
The Policy Manual states clearly that “evidence of a national labor shortage in the person’s occupation would not, by itself, satisfy this third prong.” This is an important limitation to understand. If your Prong 3 section consists primarily of statistics showing that there are not enough software engineers, cybersecurity professionals, or healthcare IT specialists in the United States, it may be found insufficient even if those statistics are accurate.
Labor shortage evidence is most useful as supporting context rather than as the core argument. If your field has a documented shortage, note it — but pair it with a specific explanation of how your proposed contributions address that shortage in a concrete and meaningful way. The shortage demonstrates demand; your proposed endeavor demonstrates your response to that demand; together, they support the conclusion that your contributions are valuable to the national interest even if other qualified workers also exist and are also working to address the same shortage.
Think of it this way: a shortage shows that the United States needs more of what you do. Your Prong 1 argument shows that what you do is nationally important. Your Prong 2 argument shows that you are specifically well positioned to do it. And your Prong 3 argument combines all of this to conclude that waiving the job offer for you specifically — a person whose work is nationally important and who is well positioned to do it — benefits the United States more than requiring you to go through a labor market test before you can start.
The Urgent National Interest Factor
Dhanasar and the Policy Manual also identify urgency as a Prong 3 factor: “whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.” This factor is relevant when your proposed work addresses a time-sensitive national challenge where delay has concrete costs.
Cybersecurity is an excellent example of urgency. The threat landscape evolves constantly. Vulnerabilities discovered today can be exploited within days. Delaying the start of work to conduct a labor market test — which can take a year or more — represents genuine lost time in a domain where timeliness matters. A well-documented Prong 3 section for a cybersecurity professional can make this urgency argument explicitly, supported by government data on cyberattack frequency and the documented financial and security costs of delayed responses.
Public health, critical infrastructure resilience, and emerging technology fields similarly support urgency arguments grounded in documented federal priorities. If your field has a published government assessment that identifies work in your area as urgent, cite it in your Prong 3 section and explain how that urgency applies to your specific proposed contributions.
References and Further Reading
20 CFR Part 656 — Permanent Labor Certification — https://www.ecfr.gov/current/title-20/chapter-V/part-656
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) — https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20Holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2016/DEC012016_01B5203.pdf
USCIS Policy Manual, Volume 6, Part F, Chapter 5 — Third Prong — https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
USAFacts — Cyberattack Statistics — https://usafacts.org/articles/how-many-cyber-attacks-occur-in-the-us/
Bureau of Labor Statistics — Occupational Outlook Handbook — https://www.bls.gov/ooh/
