Employment-based immigration in the United States allows employers to hire foreign nationals for specific positions. Employers often seek international talent to fill roles with a shortage of qualified domestic candidates. Whether for permanent jobs that require a long-term commitment or temporary assignments to address specific needs, employment-based immigration plays a crucial role in meeting the staffing requirements of American businesses.
The PERM program, which stands for Program Electronic Review Management, has long been a pivotal component of employment-based immigration. Obtaining labor certification through PERM is typically among the initial steps in securing an EB-2. Yet, the process is often cumbersome, leaving employers and potential employees frustrated.
An alternative to the traditional employment-based visa route is the EB-2 National Interest Waiver (NIW). The EB-2 category is designed for professionals with advanced degrees or individuals with exceptional abilities. What makes the EB-2 NIW unique is that applicants can file for a National Interest Waiver along with their EB-2 application. This waiver can enable them to bypass the need for a specific job offer or the PERM labor certification process. It's a flexible option for those whose work is deemed to be in the national interest of the United States and has been gaining momentum.
The Complicated and Difficult PERM Filing Process
PERM is administered by the Department of Labor (DOL) and facilitates the permanent labor certification program. The responsibility for completing the PERM process lies with the employer, not the employee. This process is a necessary precursor to hiring a foreign worker for a permanent job within the U.S.
The primary purpose of PERM labor certification is to ensure a legitimate need for hiring a foreign worker for a permanent position. To achieve this, several key steps must be completed. First, the employer must demonstrate to the DOL that insufficient U.S. workers are willing or available to take the job. This involves advertising the position and conducting recruitment efforts in compliance with specific DOL guidelines.
Additionally, the DOL must verify that hiring a foreign worker for this position will not negatively impact U.S. employees' wages and working conditions in related jobs. This is to protect the interests of American workers and ensure that foreign labor is not used to undercut domestic employees.
Challenges in Consistency
One of the significant challenges employers face in the PERM process is the lack of consistent decision-making by the DOL. The criteria and processes followed by the DOL in making PERM decisions have not always been uniform, which can lead to frustration and uncertainty for employers. This lack of consistency adds complexity to an already intricate process, making it essential for employers to seek legal guidance to navigate the PERM filing process effectively.
EB-2 NIW Is the New Trend
The EB-2 NIW is an immigration option that allows individuals to apply for a national interest waiver in conjunction with their employment-based visa application. To qualify for the EB-2 category, applicants must hold an advanced degree or demonstrate exceptional ability in their respective fields.
The eligibility criteria for the NIW include pursuing an opportunity that has substantial merit and will contribute to the greater good of the United States. This means that individuals who can prove their work is of significant importance to the nation may be eligible for this waiver.
Advantages of Pursuing an EB-2 NIW Visa
One of the key advantages of choosing the EB-2 NIW route over the traditional PERM process is that it allows applicants to bypass the PERM labor certification requirements and self-petition for the visa. Additionally, applicants do not need to have a job offer from a U.S. employer before applying for the EB-2 NIW visa. This flexibility can expedite the immigration process significantly, making it an attractive option for those who meet the criteria.
Professions and Scenarios Where the EB-2 NIW Is Applicable
EB-2 NIW is particularly applicable to science, technology, engineering, and mathematics (STEM) professionals. Positions in these industries often demonstrate substantial merit and national importance due to their contributions to research, innovation, and economic growth. For instance, researchers, scientists, engineers, and individuals working on groundbreaking projects in these sectors can often make a compelling case for an EB-2 NIW, given the national interest their work serves.
Exploring the EB-2 NIW Option
As you contemplate your immigration journey, consider the EB-2 NIW visa a viable option. Its flexibility and alignment with national interests can offer a smoother path to achieving your goals.