When PERM Availability Becomes an NIW RFE Argument

A Reddit discussion highlights a growing concern about how USCIS may be interpreting Prong 3 of the Matter of Dhanasar standard.

A recent discussion in the EB2_NIW community on Reddit highlighted an interesting issue involving Requests for Evidence (RFEs) issued under Prong 3 of the National Interest Waiver standard. In the post, the author described an RFE where USCIS argued that because the employer had previously obtained labor certifications for other employees, the employer could simply file a PERM labor certification again for the beneficiary. Based on that reasoning, USCIS suggested that a National Interest Waiver would not be justified. However, the Reddit discussion points out that this framing appears to misunderstand the legal standard established in Matter of Dhanasar. Under Prong 3 of the Dhanasar framework, the central question is whether it would benefit the United States, on balance, to waive the job offer and labor certification requirements. The analysis is not supposed to focus on whether an employer is capable of filing a PERM application. In practice, employers file PERM applications regularly, but the entire purpose of the National Interest Waiver category is to recognize that certain individuals contribute value at a level where the traditional labor certification process should be waived even if it technically exists. The concern raised in the Reddit discussion is that treating the availability of PERM as a reason to deny an NIW effectively shifts the analysis to a simpler assumption that if PERM is available, a waiver is unnecessary. According to the post, that interpretation does not align with the intended legal standard and could represent a problematic trend if it appears more frequently in RFEs.

Thank you for the post The_Boss-BD