Speed Up the Timeline to Your Green Card

By: Accel Visa Attorneys, PC

Foreign nationals vying for green card eligibility through employment sponsorship can apply via the three categories below:

• EB-1 (extraordinary ability, outstanding professors/researchers, and multinational executives/managers)
• EB-2 (professional workers with advanced degrees or those with exceptional ability)
• EB-3 (professional, skilled, and unskilled workers)

Although the EB-1 category generally has a very short “line” in which to wait, the EB-1 category requires above-average qualifications and USCIS adjudicators impose high standards of review.  Thus, the EB-1 category is one of the more difficult categories to obtain an approval.

For the rest of the foreign workforce eyeing a green card option through employment sponsorship, the EB-2 and EB-3 categories are the only available options.

The PERM Labor Certification Requirement

The EB-2 and EB-3 categories require a Labor Certification Application to be submitted to the US Department of Labor.  The labor certification process requires a US employer to conduct a labor market test to ensure qualified US workers were not overlooked when permanently filling the open position with a foreign worker.  At the time of the publication of this article, the Labor Certification is currently taking over 16 months to be prepared and certified (at minimum).

Pitfalls can occur during the lifecycle of the Labor Certification process, such as “supervised recruitment” where a Certifying Officer of the Department of Labor decides to oversee the recruitment, including reviewing job ads before they are placed.  Additionally, an employer may be selected for an audit after submitting the Labor Certification.  Audits may be random (unavoidable) or targeted (due to inconsistent/incomplete documentation in the application) and can significantly delay the process.  Also, if the US employer has undergone layoffs within 180 days prior to submitting the Labor Certification application, then the US employer must also attest to certain notices and consideration of laid off employees, further necessitating additional affirmative action on the part of the US employer.

Once the PERM Labor Certification is approved, only then can the US employer advance to the next stage of submitting the immigrant petition in order to reserve a “place in the green card line” for that foreign worker.

How to Bypass the PERM Labor Certification Requirement

The good news is that there is an option to bypass the PERM Labor Certification for those applying under the EB-2 category.  The National Interest Waiver (NIW) option waives not only the Labor Certification requirement but also the need for a job offer, thus allowing individuals to self-petition.  The EB-2 NIW requires that an applicant prove that their endeavor in the U.S. is in the national interest.  This is done by satisfying the following three criteria:

• The foreign national’s proposed endeavor has both substantial merit and national importance.
• The foreign national is well-positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category (i.e.: bypass the labor certification process).

Besides alleviating the need for a PERM Labor Certification, another reason the NIW is an appealing option is the effort from the Biden administration, announced in 2022, to attract and retain foreign graduates in science, technology, engineering, and mathematics (STEM).  In response, USCIS updated its policy guidance to offer special consideration for individuals with advanced degrees in the STEM fields.  Further, USCIS has recently expanded the availability of Premium Processing for EB-2 NIW petitions – delivering a decision in 45 days (instead of 12-18 months with regular processing).

With PERM Labor Certification processing times taking over 16 months on average, the NIW may be a much faster option for eligible foreign nationals who are seeking a green card.  At Accel Visa Attorneys, we have an NIW approval rate of 100% as of the time of publication of this article!  Do you think you have what it takes to qualify for the NIW?  To learn more, feel free to schedule a consult with our team.