EB-2 National Interest Waiver: What is the “3 Prong Test”?

The EB-2 National Interest Waiver (NIW) is an employment-based green card petition. With an approved employment-based petition (such as the EB-2 NIW), immigrants can apply for permanent residence. 

To qualify for the EB-2 NIW, an applicant must meet the EB-2 requirements (advanced degree or exceptional ability) and satisfy the three NIW prongs (see below). 

Waiving the PERM Process

When you file an NIW, you request to waive the PERM labor certification process, which is required for most other immigrant petitions. The purpose of the PERM is to show that the applicant won't be taking a job away from another qualified U.S. worker. Proving this can be a labor-intensive process for the immigrant and their employer, and it often takes around a year.

There are a few reasons why an immigrant (or their employer) might want to waive the PERM. First, to save time. Applying for U.S. visas is expensive and time-consuming, plus many have limited validity. The sooner an immigrant worker can get a green card, the more money they (and their employer) will likely save. They jump forward about a year in the overall green card process by waiving the PERM.

Entrepreneurs also tend to favor waiving the PERM process since proving that they're not taking away a job from a U.S. worker seems illogical when they're also creating their job. The NIW can be self-petitioned, and there is no need to prove that there are no other qualified candidates for the entrepreneur's role.

The NIW Three-Prong Test

To waive the PERM, immigrants must show that they can pass a "three-prong test,” which was introduced in 2016 in the Matter of Dhanasar. It focuses on how an immigrant's proposed endeavor (job offer or other plans for work) will positively impact the U.S. When applying to the EB-2 NIW, immigrants must fully satisfy each prong. 

Prong 1: The applicant's proposed endeavor has substantial merit and national importance

The first prong has two requirements—that the applicant's proposed endeavor has both substantial merit and national importance. 

Substantial merit refers to the general importance and value of the proposed work, whereas national importance refers to the specific impact of the proposed work on the United States. 

Example: 

Rosita is a startup founder from Mexico. As Chief Technology Officer at her company, she develops AI technologies that make airport security more efficient. 

She is applying for the EB-2 NIW to continue developing her technology and permanently lead her company from within the U.S.. 

Her proposed endeavor has substantial merit because it helps travelers get through airport security more quickly and reduces the number of employees required at an airport. 

It is nationally important because it will advance national security in U.S. airports, a top priority for the U.S. government.

Prong 2: The applicant is well-positioned to advance the proposed endeavor

The second prong considers whether the applicant's past achievements and current resources will enable them to do their proposed work.

Example:

Nicos is a researcher from Cyprus. He is researching new treatments for chronic pain at a top institution in the U.S. 

Nicos is well-positioned to advance his proposed endeavor because of his background and expertise. He has a doctorate related to his research and has been working on treatments for chronic diseases for the past ten years. 

He is also well-positioned because of his resources. He has numerous research grants and is employed by a top medical institution.

Prong 3: On balance, it would be beneficial to the United States to waive the requirements of the PERM labor certification

According to the Matter of Dhanasar (which introduced the three prongs of the NIW), U.S. Citizenship and Immigration Services (USCIS) considers a few different factors when assessing the third prong:

• It would be impractical for the applicant to obtain a job offer or labor certification: For example, if the applicant is an entrepreneur, it might be impractical for them to obtain a job offer or labor certification.
• Even assuming other qualified U.S. workers are available, the U.S. would still benefit from the applicant's contributions: Perhaps more qualified U.S. workers are available, but the applicant is still doing critical work. 
• The applicant's work is time-sensitive: The applicant's proposed work is important and time-sensitive, but going through the PERM process would delay it. 

Example:

Ikenna is an entrepreneur from Nigeria. He is currently working as his company's CEO on a temporary work visa in the U.S. His company has contracts with U.S. government agencies. 

His work is time-sensitive because he needs to be present in the U.S. to fulfill contracts with government agencies. It would also be impractical for him to obtain a labor certification since he is the founder of his company. 

Explore Your Unique EB-2 NIW Case

Each EB-2 NIW petition is unique. If you’re curious whether you qualify for the EB-2 NIW, contact our expert immigration team today.