Should I File an NIW Petition instead of Filing a PERM? Assessing the Pros and Cons of Each Option

February 15, 2024
Courtney Wachal

Since President Biden’s executive order on artificial intelligence was released, many are wondering whether filing a national interest waiver (NIW) petition or filing a PERM (labor certification) application is the best option. To help determine which option is the best for you, we have evaluated the pros and cons of each option.

Benefits of Filing an NIW

  • Ability to Self-Petition

An NIW is an I-140 immigrant petition  that falls under EB-2 (the second employment-based category). However, unlike filing a PERM, you can file an NIW as a self-petition, meaning that you do not need an employer to sponsor you.

  • Length of Time to File

Another benefit of the NIW is that you bypass the PERM process, meaning it is usually faster to file and get an NIW approved. For example, NIW’s do require a lot of evidence, so it can often take a few months to prepare and file an NIW. However, once the NIW is filed, assuming you choose premium processing, you would receive a response back within 45 days. Thus, in total, from start to finish for an I-140 EB-2 NIW, it likely would not take any longer than 4-5 months for approval unless regular processing was selected instead of premium processing.

  • STEM Degree Benefits

Having a STEM (Science, Technology, Engineering, and Mathematics) degree, especially a PhD, likely will increase your chance of getting the NIW approved. Additionally, having a STEM degree may require less evidence that needs to be provided. Within the next 6 months, USCIS should provide guidance on how they want the NIW’s for people falling under the STEM/critical and emerging technology fields to be adjudicated.

  • No Prevailing Wage Requirement

Not having a prevailing wage requirement is both good and bad. It is beneficial because you can get the NIW approved much faster and there is no need to be tied to one specific sponsoring employer which allows for flexibility. However, this is also a con because not having a prevailing wage requirement means that a company could pay you whatever they feel is reasonable and, in some cases, this may be substantially lower than what one would expect or what the Department of Labor requires.


Benefits of Filing a PERM

A PERM is the first step in filing for an employment based green card an employment based green card based on labor certification. The PERM first must be approved by the Department of Labor to ensure the prevailing wage is accurate and to ensure that this position is not taking away jobs from U.S. workers. However, once the PERM is approved, then you can file an I-140 either under EB-2 (the second employment-based category) or EB-3 (the third preference employment-based category) depending on the requirements for the PERM position.

The EB-3 category allows more options for those individuals who may not qualify for an EB-2 in general nor an NIW.

The EB-3 allows for the following classifications:

  • Professionals
    • Position requires at least a U.S. bachelor’s or foreign equivalent degree
  • Skilled workers
    • Position requires at least 2 years of experience
  • Unskilled workers
    • Position requires less than 2 years of experience

Length of Time to File a PERM/I-140

Typically, the PERM process is much longer, as there are multiple phases before the PERM is sent and approved by the Department of Labor. The total time for a PERM to be approved typically takes 2 years, assuming there is no audit issued. Then from there, often an I-140 can be filed within a month or so. You can also do premium processing on a PERM/I-140 so often a response is provided by USCIS within 15 calendar days.

Prevailing Wage Requirement

Another benefit of a PERM application is that the Department of Labor ensures that based on your specific position, wage level and location where you reside, the company must pay you a specific salary. As such, there is more guarantee that you are being paid a reasonable salary.

What should I do if I already have a I-140 approved through the PERM process, should I then proceed with filing an NIW? Are there benefits?

If you already have an I-140 approved based on PERM, especially if it was filed under EB-2, it may not be beneficial to then file an NIW. The reason for this is that because an NIW falls under EB-2, you will not receive an earlier priority date for an NIW. However, if your PERM was filled under EB-3 and you may now meet the NIW criteria, at that point it may be worth discussing whether filing an NIW makes sense.

If you also do not want to be tied to a specific employer, you may prefer to file an NIW instead. If you choose this route, you should be able to port your previous priority date so that you do not lose any eligibility to file for a green card.

Should you feel that you may meet the qualifications for an NIW in lieu of a PERM or if you determine that PERM may be the best option, please feel free to reach out to one of our employment-based attorneys for a consultation.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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