U.S. law provides various employment-based visa categories to allow foreign nationals to immigrate to the United States. The Employment Based Second Preference Category (EB-2) has two different classes – PERM and National Interest Waiver (NIW). Before you begin the process of applying for one of these employment-based visas, you first need to understand what they are and which one would best apply to your situation. In this post, we will explore the differences between EB-2 PERM and NIW and the requirements for both.
What is EB-2 and Why Do People Want It?
Congress has set a limit on the number of employment-based immigrant visas that can be issued in a year (around 150,000), and U.S. immigration law allocates those immigrant visa numbers based on category. 28.6% of the numbers are reserved for the EB-1 category (Aliens with extraordinary ability; Outstanding professors and researchers; and Multinational managers and executives), 28.6% are reserved for EB-2 (advanced degree professionals and NIW); and 28.6% are reserved for EB-3 (professionals and skilled workers), with the remainder spread amongst other, more esoteric categories.
More people want (and qualify for) immigrant visas each year than the available supply, so backlogs have developed. Plus, each country typically cannot utilize any more than 7% of the total visa numbers. As a result, natives of India and China have much longer backlogs than natives of every other country. While not an unbreakable rule, historically, EB-1 has had the shortest backlogs, EB-2 the next shortest, and EB-3 the longest backlogs. Thus, everyone would like to be classified under EB-1 if they could, but the reality is that only a small percentage of people ever qualify under that category, so most people seeking to immigrate through employment are going to fall under either the EB-2 or EB-3 category. As noted above, it has frequently been the case that the backlogs for EB-2 are shorter than the backlogs for EB-3, so people often prefer to be classified under EB-2 if they can do so.
EB-2 is the visa category that is reserved for individuals coming to work in positions requiring either an advanced degree or exceptional ability in the applicable field of work. Qualifying under EB-2 then has two sub-categories: (1) a labor certification process known as PERM where an employer establishes it cannot find a U.S. worker to fill a specific position; and (2) a more limited process where the requirement for a labor certification is waived in the U.S. national interest (a “National Interest Waiver”).
EB-2 PERM Process
The EB-2 PERM process takes a fairly long time, currently averaging at least two years from the start of the process until approval of the immigrant visa petition. This average timeline does not, however, include the steps that come after qualifying for an EB-2 visa, such as applying for an immigrant visa at a U.S. consulate or applying for adjustment of status in the U.S. As of October 2024, EB-2 visa numbers were “retrogressed” for natives of India by almost 12 years; 4 years for natives of China; and about one year for natives of all other countries.
To qualify for an EB-2 PERM, you need to complete the following steps:
- Secure a PERM certification: Your employer will prepare and submit a PERM application with the DOL certifying that it could not locate a minimally-qualified U.S. worker to fill a specific position requiring an advanced degree, and that you are qualified to fill that position. On average, this stage takes 18-24 months to complete.
- File form I-140: Your employer will have to file form I-140 within 180 days of receiving the PERM certification. This filing includes documentary evidence, such as the approved labor certification from the DOL, proof the employer can pay the promised wages, and evidence that you have the advanced degree or exceptional ability required by the employer for the position. USCIS takes anywhere from 3 weeks to 6 months to process these I-140 petitions.
- Wait for the “priority date” to become “current.” This is the spot in line for the green card. The “priority date” is the date the PERM application is filed with the DOL. For people not native to India or China, the priority date often becomes “current” a few months after the PERM application is certified by the DOL. Natives of India and China, however, usually must wait many years for their priority dates to be “current.”
- Green card application: When the priority date is current, you can either start the adjustment of status process (if living in the U.S. in a valid immigration status) or process at a U.S. consulate in another country.
What is EB-2 NIW?
The EB-2 NIW is a way to qualify for an immigrant visa without having to go through the labor certification process, and a formal job offer is not required. You can file the NIW petition on your own, without an employer sponsor, making NIW useful for individuals whose employer either cannot or will not sponsor them through the PERM process.
NIW is available as an option to foreign workers who are looking for employment in the United States and who work in a field that is beneficial to the U.S. You must be able to benefit the U.S. economy in education, science, engineering, technology, healthcare, entrepreneurship, math, or another area of society. You must also meet the eligibility requirements for a national interest waiver, including:
- Possess an advanced degree or exceptional ability in their field.
- Demonstrate that your employment in the U.S. is of national interest.
- Your proposed endeavor has substantial merit and national importance and that it would be beneficial to the U.S. to waive the job offer and labor certification requirements.
- You are well-positioned to advance the proposed endeavor.
EB-2 NIW Process
The application process for an NIW is significantly different from that for a PERM. The average timeline for an NIW petition is around one year, but this is very dependent on the situation and your specific application.
Here is the step-by-step process of applying for an NIW:
- File Form I-140: Like a PERM, an NIW requires filing Form I-140 with USCIS. It usually takes people at least a few months to gather the evidence necessary to support the NIW filing, such as letters of recommendation; evidence of achievement; academic records; proof of advanced degrees or evidence of exceptional ability; and evidence of the merit and national importance of the work the applicant will perform. Plus, it also takes USCIS anywhere from 6 to 12 months to make a decision on the I-140 petition once it is filed.
- Wait for the “priority date” to become “current.” This is the spot in line for the green card. The “priority date” for an NIW is the date the I-140 petition is filed with USCIS. For people not native to India or China, the priority date often becomes “current” a year or so after the I-140 is filed with USCIS. Natives of India and China, however, usually must wait many years for their priority dates to be “current.”
- Green card application: When the priority date is current, the applicant can either start the adjustment of status process (if living in the U.S. in a valid immigration status) or process at a U.S. consulate in another country.
Which is Better — EB-2 PERM or NIW?
Both the PERM process and the NIW have their places. For some people a PERM works better than NIW, for others an NIW is superior, and for some both work equally well. Some points to consider are:
- PERM requires an employer to offer you a specific job in the U.S. and complete a labor certification, while an NIW can be self-filed without relying on an employer.
- The full timeline for getting an NIW can be faster than a PERM since the process of getting labor certification takes some time.
- The PERM process is largely out of the individual’s control – the individual has no influence over the completion of the labor certification steps, while the individual has much more control over the completion of the NIW petition.
- Almost any professional-level foreign national can qualify for an immigrant visa through PERM (either as an EB-2 advanced degree holder or as an EB-3 skilled worker), but not everyone can qualify for an NIW. To qualify under NIW you not only must possess an advanced degree or exceptional ability, you must also prove that you personally will benefit the U.S. Because of this, applying for an NIW is a more painstaking process than PERM as the level of required documentation is much greater than with a PERM.
Contact a Charlotte Immigration Attorney Today
Do you want to apply for an employment-based visa, such as a PERM or NIW? If so, contact the Charlotte immigration attorneys at The Fogle Law Firm LLC through our website or by calling us directly at 404-522-1852. We look forward to assisting you.