The recent district court decision in Mukherji v. Miller has generated understandable excitement within the employment-based immigration bar. On its surface, Mukherji addressed the EB-1A extraordinary ability classification and the legality of USCIS’s reliance on the so-called “final merits determination.” But beneath the doctrinal specifics lies a broader administrative law message—one that may have significant implications for National Interest Waiver adjudications under Matter of Dhanasar. While Mukherji does not directly involve the EB-2 NIW framework, its reasoning signals that adjudicatory standards developed through agency practice rather than formal rulemaking may be vulnerable to judicial scrutiny. For NIW applicants, that development may ultimately prove beneficial.

To understand why, it is important to examine what Mukherji represents. In that case, a federal district court scrutinized USCIS’s application of a second-step merits analysis in an EB-1A petition, questioning whether the agency had effectively imposed a substantive requirement not found in the governing statute or regulation. The court’s holding rested not on disagreement with the agency’s factual conclusions but on a more fundamental concern: agencies may not create binding substantive eligibility requirements through internal adjudicatory constructs that exceed statutory and regulatory authority. When adjudicatory frameworks function as de facto legislative rules without notice-and-comment rulemaking, they risk running afoul of the Administrative Procedure Act.

That principle extends beyond EB-1A adjudications. It strikes at the core of how USCIS develops and applies interpretive standards across the employment-based immigration system. In the NIW context, the governing statute provides that the labor certification requirement may be waived when it is “in the national interest.” Congress did not define “national interest.” The regulations do not define it either. In 2016, the Administrative Appeals Office issued Matter of Dhanasar, replacing the prior NYSDOT framework with a three-prong test: substantial merit and national importance, well positioned to advance the endeavor, and, on balance, benefit to the United States sufficient to justify a waiver of labor certification.

Dhanasar was a welcome reform if you love eating a can of worms. It eliminated the overly rigid “unique” or “indispensable” standard that had plagued NIW adjudications for years. It clarified that national importance does not require geographic breadth and that the inquiry is prospective rather than retrospective. It provided structure without, at least initially, appearing to impose new substantive burdens.

Yet over time, practitioners have observed a gradual tightening in how Dhanasar is applied. Requests for Evidence increasingly demand economic projections, quantifiable job creation data, or documentary proof that a petitioner’s work is directly aligned with federal policy initiatives. The “well positioned” prong sometimes drifts toward an extraordinary ability analysis, requiring documentation beyond what the statutory framework contemplates. The third prong, i.e. whether waiving labor certification would benefit the United States on balance, can function as a catch-all veto mechanism, occasionally untethered from the evidentiary record.

This is where Mukherji becomes relevant. The district court’s analysis suggests that when an agency transforms an interpretive framework into a rigid, outcome-determinative hurdle that exceeds the governing statute or regulation, it risks judicial correction. Although Dhanasar is a precedential AAO decision interpreting ambiguous statutory language, it is not a regulation promulgated through notice-and-comment rulemaking. Its authority derives from administrative adjudication. That is permissible—agencies may interpret statutory ambiguity through precedent decisions. But such interpretations must remain faithful to the statute’s text and may not ossify into extra-statutory eligibility requirements.

If courts apply the reasoning of Mukherji to the NIW context, certain aspects of Dhanasar adjudications could face heightened scrutiny. For example, the statute requires only that waiving labor certification be in the national interest. It does not require proof of immediate economic impact, specific employment numbers, or formal endorsements from government agencies. While such evidence may be persuasive, it is not mandated by Congress. Should USCIS begin to treat such evidence as effectively mandatory in practice, litigants could argue that the agency has imposed requirements beyond statutory authority.

Similarly, the “on balance” prong must be understood as an exercise of discretion grounded in the record. If adjudicators rely on generalized concerns about protecting U.S. workers without engaging with the evidence presented, or if they introduce novel considerations not articulated in Dhanasar, courts may view such reasoning as arbitrary and capricious. Mukherji demonstrates that district courts are willing to examine whether USCIS has adhered to the legal framework governing its decisions rather than deferring reflexively to agency expertise.

For NIW applicants, this evolving judicial posture may prove advantageous. The burden of proof in immigration petitions is preponderance of the evidence. The petitioner must demonstrate that it is more likely than not that the proposed endeavor has substantial merit and national importance and that waiving labor certification would benefit the United States. That standard is meaningful but not insurmountable. If courts signal that USCIS cannot layer additional substantive requirements onto that framework, adjudications may become more predictable and more closely tied to the statutory text.

This does not mean that Dhanasar is doomed. On the contrary, Dhanasar remains the controlling administrative precedent. It provides a coherent and structured approach to evaluating NIW petitions. Courts are unlikely to discard it wholesale, particularly given the inherent ambiguity of the phrase “national interest.” What Mukherji suggests is not the collapse of Dhanasar but the possibility of constraining how it is applied. Interpretive flexibility must not morph into regulatory expansion.

For practitioners, this development carries strategic implications. NIW petitions should be drafted with careful attention to statutory language. Arguments should anchor each prong explicitly to the text of the statute and the reasoning articulated in Dhanasar, avoiding unnecessary concessions that elevate discretionary factors into quasi-mandatory elements. Where adjudicators appear to impose novel or extra-regulatory requirements, responses should respectfully preserve those issues in the administrative record. In cases of particularly egregious overreach, federal court review under the APA may become a viable option.

Mukherji may also encourage more rigorous judicial engagement with immigration adjudications generally. For years, district courts often remanded cases to USCIS with limited substantive analysis. If courts begin to scrutinize not only factual determinations but the legal foundations of agency frameworks, applicants may gain greater leverage in challenging denials that depart from statutory authority.

Ultimately, the question is not whether Mukherji will dismantle Dhanasar. It will not. The more significant question is whether Mukherji marks the beginning of a judicial trend toward enforcing clearer boundaries on agency-created adjudicatory standards. If that trend continues, NIW applicants stand to benefit from a system more firmly anchored in statutory text and less susceptible to interpretive drift.

The National Interest Waiver was designed as a flexible mechanism to attract individuals whose work advances the United States in meaningful ways without requiring a traditional labor certification. Its vitality depends on balanced discretion—neither unbounded agency authority nor rigid judicial micromanagement. Mukherji reminds us that when agencies stray too far from statutory moorings, courts may intervene. For the NIW community, that reminder may represent not a threat to Dhanasar, but a reinforcement of the legal guardrails that protect applicants from adjudicatory overreach.

For more information, or for a detailed conversation regarding eligibility for a National Interest Waiver petition, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.