Why It Benefits the U.S. to Waive the Job Offer

EB-2 ordinarily runs through the Department of Labor. Every petition in the classification has to arrive with an individual labor certification, or with a Schedule A application where one applies. That certification is a labor-market test with a defined purpose: making sure the admission of foreign workers does not adversely affect the job opportunities, wages, and working conditions of U.S. workers — in what is usually a geographically limited labor market.

The waiver removes that step. A petition filed with a waiver request does not need a job offer behind it, so you file as a self-petitioner, and waiving the job offer waives the permanent labor certification requirement along with it. One piece of paperwork survives: you still submit the employee-specific portions of a labor certification, Form ETA-750B or Form ETA-9089, but nothing goes to the Department of Labor for approval. 8 C.F.R. section 204.5(k)(4).

Dhanasar names three considerations. First, whether — given the nature of your qualifications or your proposed endeavor — it would be impractical either for you to secure a job offer or for a petitioner to obtain a labor certification. Second, whether the United States would still benefit from your contributions even assuming other qualified U.S. workers are available. Third, whether the national interest in your contributions is urgent enough to warrant forgoing the labor certification process. 26 I&N Dec. at 890-91. USCIS gives urgency a concrete shape — a time-sensitive public health or safety benefit offered by the endeavor — and adds further considerations of its own.

This is the most common misfire on the third prong, and the guidance closes it in one line: evidence of a national labor shortage in your occupation would not, by itself, satisfy this prong. USCIS Policy Manual, 6 USCIS-PM F.5(D)(3). The same reasoning runs through the first prong, where proposing to work in a shortage occupation is likewise insufficient on its own. A shortage is a fact about a labor market. This prong asks about you and your endeavor.

Meeting the three prongs establishes eligibility. It does not compel a grant. USCIS may grant a national interest waiver as a matter of discretion where the petitioner demonstrates eligibility by a preponderance of the evidence, and the burden stays with the petitioner throughout. Every petition is considered on a case-by-case basis. USCIS Policy Manual, 6 USCIS-PM F.5(D)(2).

Why should this case skip the labor market test? The officer weighs your endeavor and your position to advance it against the benefits of requiring a labor certification, so the answer has to be specific to you rather than to your field.

Is there something the process cannot capture? An employer may list only the minimum job requirements, which is why unique knowledge or skills exceeding that standard is a named factor.

Is the timing doing any work? Urgency wants a reason the national interest cannot wait. Petitions are decided one record at a time.

This prong gets drafted as a comparison. A section that restates the first two prongs in a different order is the version officers dispose of in a sentence.

We argue only the named factors your facts actually support. Claiming urgency without a timeline spends credibility the rest of the petition needs.

Labor-shortage material stays out of this section, because a national shortage does not satisfy this prong by itself.