Yes, it can. An interesting pattern of cases can be identified in AAO case law since 2025, which is that the government is increasingly using the third prong of the Matter of Dhanasar test as the main basis to deny an NIW petition even when the first and second prongs are met. The third prong is a balancing test that asks whether “on balance, a waiver would be beneficial to the United States.”
Given this, applicants should ensure to give enough care and attention to making clear and effective arguments for the third prong, as well as the first and second prongs, when preparing and presenting an NIW petition.
- Where the Third Prong Sits in the Matter of Dhanasar Test
- AAO Case Review: ENT Physician NIW Denied Based on Third Prong
- How Could the Petitioner Have Better Argued the Third Prong to Prevent Such a Denial?
- What the Third Prong Now Means for Your NIW Petition Strategy
- Speak With an Immigration Attorney About Your NIW Petition
- The government increasingly relies on the third prong of Matter of Dhanasar to deny NIW petitions, even when the first two prongs are met.
- A strong record for the third prong requires concrete evidence, not just assertions, on why a waiver is more beneficial than labor certification.
- Effective NIW strategy now demands careful, evidence-backed arguments on all three prongs, with the third prong treated as a decisive balancing test.
Where the Third Prong Sits in the Matter of Dhanasar Test
As a reminder, for a successful NIW petition, all three prongs must be met under the test that’s set out in Matter of Dhanasar:
- The applicant’s proposed endeavor must have substantial merit and national importance.
- The applicant must be well positioned to advance the endeavor.
- On balance, it would be beneficial to the United States to grant the waiver for the applicant.
Let’s discuss an example that provides valuable insights into what elements a successful petition must ensure to address when arguing the third prong.
AAO Case Review: ENT Physician NIW Denied Based on Third Prong
The Proposed Endeavor and the Original Third Prong Denial
In a particular AAO appeals case from March 20, 2025, the government discussed an appeal of an NIW denial filed by an ear, nose and throat (ENT) physician and surgeon.
The applicant’s proposed endeavor was to establish a network of clinics providing specialized rehabilitative services for individuals with speech, swallowing, and hearing disorders. The applicant submitted a business plan stating that the clinics will operate mobile health units to provide diagnostic and treatment services in the community, and conduct various outreach and education programs.
In the original decision, USCIS found that the prospective impact of this endeavor was broad enough to satisfy the first prong, substantial merit and national importance. However, USCIS had denied the case on the basis that there wasn’t enough evidence that showed the applicant was not well positioned to advance the endeavor, and that on balance, it would benefit the US to grant the waiver to applicant.
Why the AAO Accepted the Well Positioned Argument
On appeal, petitioner argued that he was indeed well positioned to advance the endeavor. In support, he presented expert letters from other ENT surgeons describing his leadership in the field, and evidence that he had authored scientific articles published in medical journals that have been cited a total of 211 times by various researchers. He had also contributed chapters to medical textbooks. He also presented evidence regarding his existing medical clinics he was running in his home country.
AAO agreed and found in favor of the petitioner on the point that he was well positioned to advance the endeavor, because there was enough evidence demonstrating his relevant education, skills, record of success, plan for future activities, and the interest in his work of other professionals in his field.
Where the Third Prong Argument Failed
However, the deciding factor in this case was whether the Petitioner met the third prong of the Matter of Dhanasar test, that on balance, it would benefit the United States to grant the waiver to the applicant instead of enforcing the ordinary labor certification requirement. Here, the AAO found the Petitioner’s arguments unconvincing and ended up agreeing with the government that denied his case.
The main critique of the AAO was that Petitioner did not provide a convincing explanation of why it would be impractical for Petitioner to obtain a job offer or labor certification, or that the national interest in the Petitioner’s contributions was sufficiently urgent to forego the labor certification process.
For example, the petitioner asserted that requiring a labor certification would hamper him from pursuing a unique combination of research and clinical work outside of a standard employment relationship, but AAO found this argument unconvincing in light of his previous work experience, during which he in fact successfully conducted research and operated medical clinics at the same time. The petitioner also claimed that his entrepreneurial healthcare delivery model could not be adequately captured by the labor certification process. However, no evidence was cited to support this claim.
Because the case did not satisfy the third prong of the Matter of Dhanasar test, the AAO declined to turn the NIW denial into an approval for this petitioner, even though it agreed the endeavor had substantial merit and national importance and that he was well positioned to advance the endeavor.
How Could the Petitioner Have Better Argued the Third Prong to Prevent Such a Denial?
AAO repeatedly noted in this opinion that no “evidence” was submitted in support of the petitioner’s arguments relating to the third prong. If we were to imagine a second attempt at the petition or for the appeal, we can think of several types of evidence that could very well have produced a more favorable result.
Proof of Majority Ownership in a U.S. Business Entity
For example, the petitioner could have submitted proof that a U.S. business entity was established to serve as the vehicle through which he would advance his business plans, and show proof that he owned more than 50% of the entity. This would serve as concrete evidence that the labor certification process would not be practicable for the applicant as he had majority ownership of the business entity.
Expert Letters That Establish Urgent, Time-Sensitive Need
In addition, the petitioner could have obtained more strategically framed expert letters that discuss more specifically why the medical needs of the community and region had time-sensitive needs that would be best addressed without delay. For example, perhaps a representative of a community health agency covering the city or state that petitioner intended to expand his clinics could have explained how the prevalence of ENT diseases was increasing in that community and how the city, state or region needed urgent, time-sensitive intervention that the petitioner’s proposed endeavor would be able to provide.
Evidence That Skills Exceed the Minimum Requirements of the Occupation
Finally, the petitioner could have developed more evidence tending to show why he had unique skills and experiences in ENT rehabilitation that would far exceed the minimum requirements of the occupation such that they would not be adequately captured by the labor certification program. Expert letters could have helped clarify how it would be impossible to replace his skills with that of a U.S. surgeon or physician with minimum qualifications.
What the Third Prong Now Means for Your NIW Petition Strategy
In sum, this case serves as a reminder that in today’s NIW adjudication landscape, the third prong is no longer an afterthought but can be a decisive issue, making careful strategic presentation on all three prongs an essential approach to case success.
Speak With an Immigration Attorney About Your NIW Petition
A petition that is strong on merit can still fail on the balancing test. Scott Legal, P.C. prepares EB-2 National Interest Waiver petitions that build the third prong record from the outset, including ownership evidence, strategically framed expert letters, and documentation of urgent need. Contact Scott Legal, P.C. to discuss your NIW petition with an immigration attorney.
