Labor certification and national interest waiver

In the labor immigration process to the United States, Permanent Labor Certification (PERM) and National Interest Waiver (NIW) are two key mechanisms that allow foreign professionals to obtain permanent residence (Green Card).

Labor Certification is a standard requirement for most employment applications, while the National Interest Exemption offers an alternative path for those whose work is deemed to be of significant benefit to the country.

Permanent Labor Certification (PERM)

What is Labor Certification?

Permanent Labor Certification (PERM) is a process administered by the U.S. Department of Labor (DOL) that verifies that:

1. There are no qualified American workers available for the position offered.

2. The hiring of foreign workers will not negatively affect the wages and working conditions of American workers.

Requirements for the Employer

Valid Identification: The employer must have a valid Federal Employer Identification Number (FEIN) and a physical location in the U.S.

Prevailing Wage Determination: Obtain a determination of the prevailing wage for the position through the National Prevailing Wage Center (NPWC).

Recruitment Process: Conduct a recruitment process to test the US labor market.

Application Process

1. Prevailing Wage Determination: The employer requests the NPWC to determine the prevailing wage for the position.

2. Recruitment: The employer conducts a recruitment process that includes posting advertisements in newspapers and other media, and reviewing candidates.

3. Filing Form ETA-9089: If no qualified candidates are found, the employer files Form ETA-9089 with the DOL.

4. Approval: Once the certification is approved, the employer may file Form I-140 with USCIS. (USCIS+1Interstride+1)

Additional Considerations

Validity: The labor certification is valid for 180 days from its approval.

Audits: The DOL may conduct audits to verify compliance with the process. (USCIS+2Interstride+2DOL+2)

National Interest Waiver (NIW)

What is the National Interest Exemption?

The National Interest Waiver (NIW) allows certain professionals to apply for permanent residence without a job offer or labor certification if they can demonstrate that their work significantly benefits the U.S.

Eligibility

To qualify for an NIW under the EB-2 category, the applicant must:

1. Have an advanced degree or demonstrate exceptional ability in your field.

2. Meet the three criteria established in the “Matter of Dhanasar” case:

Substantial Merit and National Importance: The proposed project must have a significant impact on the U.S.

Ability to advance the project: The applicant must demonstrate that they are well positioned to carry out the project.

Benefit to the U.S.: It should be beneficial to the country to waive job offer and labor certification requirements.

Application Process

1. Preparing the petition:

The applicant gathers evidence to support their eligibility and the impact of their work.

2. Filing Form I-140:

The applicant files Form I-140 with USCIS, along with supporting documentation.

3. Adjustment of status or consular processing:

Once the I-140 is approved, the applicant can proceed with adjustment of status (if in the U.S.) or consular processing (if outside the country).

Advantages of the NIW

Self-petition: No sponsoring employer required.

Labor Certification Exemption: PERM process is bypassed.

Flexibility: Suitable for researchers, entrepreneurs and professionals in fields of national interest.

Frequently Asked Questions (FAQs)

What is the difference between PERM and NIW?

– PERM: Requires a job offer and labor certification.
– NIW: Allows self-petition without a job offer or labor certification, if the work can be shown to significantly benefit the U.S.

Can I apply for a NIW if I am an entrepreneur?

Yes, entrepreneurs can qualify for a NIW if they can demonstrate that their business or project has a significant impact on the U.S. (USCIS)

How long does the NIW process take?

Processing time varies, but is typically between 6 and 15 months.

Do I need a lawyer to file a NIW?

Although not mandatory, legal counsel is recommended due to the complexity of the process and the need to present solid evidence.

Statement: The concepts explained should not be taken as legal advice, it is a compendium of public information from the INA.

In all cases, consultation with an attorney is recommended to determine your eligibility. At Immigration Document Preparers, we limit ourselves to submitting forms to USCIS correctly based on the information that the client provides us. We do not give advice or legal advice.