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Ask Mr. Shusterman: National Interest Waivers vs. PERM

A commonly-asked question about employment-based immigration is “Which is better, a PERM labor certification application or a National Interest Waiver (NIW)?". My answer always depends on the person’s occupation, job offer, employer sponsorship, and some other factors.

The biggest difference between these two options is the labor certification requirement, which requires the sponsoring employer to test the US job market and demonstrate that it could not find a minimally-qualified U.S. worker willing to accept the position. The PERM application must be approved by the Department of Labor before the employer may submit an I-140 immigrant visa petition to the USCIS. The labor certification can be a very long process and can take anywhere from a few months to 2 years.

The labor certification process may be waived for qualified professionals who hold advanced degrees, or are aliens of exceptional ability, whose employment is in the “national interest". Such an individual may file an Immigrant Visa Petition (Form I-140) under EB-2 category without the labor certification process by requesting a National Interest Waiver (NIW). He does not even need to be sponsored by an employer.

However, NIWs can be difficult to obtain. In a 1998 decision entitled New York State Department of Transportation, the agency imposed the following restrictive criteria for obtaining National Interest Waivers:

the individual seeks to work in an area of “substantial intrinsic merit";

the benefit of the individual’s proposed activity “will be national" in scope; and

the national interest would be adversely affected if a labor certification were required.

Here are a few factors that I always consider when advising a client whether to choose the PERM Labor Certification or a National Interest Waiver:

Occupation:

The occupation is the first factor to consider. Some occupations are more in short supply than others. Also, some occupations are more likely to be considered in the national interest. For instance, most software engineers should probably have their employers submit PERM applications, while certain biomedical reseachers might want to consider the NIW route. It is usually easier to prove that the work of a scientist conducting biomedical research is in the national interest than the work of a computer engineer especially if the biomedical researcher is, for example, working on a cure for cancer.

Academic Degrees/Experience:

Only persons who fulfill the basic requirements for the EB-2 category may apply for an NIW: a Master’s degree or a Bachelor’s degree plus five years of progressive experience related to the profession. However, even persons with a Bachelors’ degree, or without a degree, may qualify for green cards if their employers submit a PERM application under the EB-3 “Professionals", “Skilled Workers" or “Unskilled Workers" category as long as they have the requisite amount of specialized training and/or experience.

Sponsorship

PERM requires sponsorship by an employer while NIW does not. If you think you might qualify for the NIW but you do not have a sponsor, you may self-petition.

A Permanent Job Offer

Is the position offered to you by your employer temporary or permanent? PERM requires your employer to offer you a permanent full-time position and to pay you at the prevailing wage as determined by the Department of Labor. For an NIW, you do not necessary need an offer of employment and there is no prevailing wage requirement.

Physicians

Physicians who agree to work in a medically-underserved area(s) or for the Veterans’ Administration for a period of five years are entitled to be granted NIWs. However, unless the physician was born in India or mainland China, this may be a slower method of obtaining a green card than using PERM. On the other hand, it does permit the employer to avoid the costs and hassle associated with a PERM application. Also, for most physicians, this is an easy method to secure a work permit for their spouses.

The choice between PERM and NIW depends on a variety of factors. It should be made only after careful consideration by you and your attorney.

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