NIW vs PERM Labor Certification | Differences, Pitfalls, Uses

The world of immigration law is complex and difficult to master. Unless you’re an immigration attorney, you can’t be expected to know everything about every form and policy. So it comes as no surprise when people ask a question such as this: “what is the difference between the NIW and the PERM Labor Certification?”

Fortunately, this question is easily answered by experienced immigration lawyers. But rather than just give a one-sentence answer, let’s dive into the specifics of each aspect and see how they are related and how they differ.

The PERM Labor Certification

The PERM is a form that is obtained on the road to a green card that is issued by the Department of Labor. It is required for almost every classification of employment-based green cards except for the EB-1 and certain EB-2 cases. Because of this, it is often one of the first steps green card petitioners take when applying.

In order to obtain a PERM Labor Certification, your employer must file an ETA-9089 application. However, this form can only be filed if your employer has gone through the requisite recruitment process, the reason for the PERM requirement.

The PERM recruitment process involves having your employer place job ads using three distinct methods:

• Going to your state’s workforce agency and placing a job order there for a minimum of 30 days.
• Having an ad for the position placed in the Sunday edition of the largest locally-circulated newspaper in the area. This must be done for 2 different Sunday editions and can be placed consecutively.
• Recruiting using three of the following additional methods:
  • Your employer’s own website
  • A job listing website such as ziprecruiter.com or monster.com
  • Recruiting at a job fair
  • Placing an ad in a radio or television program
  • Posting the job at a campus placement office
  • Recruiting on a college campus
  • Placing an ad in a smaller or ethnic newspaper
  • Incentivizing your employees to refer applicants
  • Using a private employment firm
  • Placing an ad with a professional or trade publication

Once the job order has run its 30-day course, your employer will need to wait at least 30 more days before filing the ETA-9089 along with all the documentary evidence for the ads. If the Department of Labor (DOL) approves the application, then your employer will receive the PERM Labor Certification and be able to move on to the next step of the green card process.

The reason for the entire PERM recruitment process is to ensure that employers do not take advantage of the immigration system in order to bring cheap labor into the U.S. to displace American workers. If your employer shows that the recruitment process was in good faith, that should minimize issues.

Pitfalls of the PERM

However, there are two main things that can complicate this process. The first is supervised recruitment. This is when the Certifying Officer of the DOL closely scrutinizes each step of the recruitment process, thus dramatically slowing the processing time. A draft of each ad must be submitted to the officer before being placed.

The second way this can be delayed is if your employer is chosen for an audit. There are two kinds of audits that the DOL conducts: random and targeted. The random audits are unavoidable and unpredictable, but the targeted audits can be prevented.

These usually happen when there is inconsistent or incomplete documentation on your application. If your employer is selected for an audit, it has the potential to double the processing time for your PERM. Working with an immigration attorney can help prevent any targeted audits from befalling your employer.

The National Interest Waiver

The National Interest Waiver (NIW) and PERM are similar in that they are both aspects of obtaining a green card in the U.S. However, this is where their similarities end. The NIW, in fact, is an aspect created in response to the PERM and is something to strive for rather than an obstacle.

For people applying for the EB-2 visa, the NIW is a way to bypass not only the requirement of a job offer and employer but also to waive the PERM requirement. This is due to the fact that many EB-2 applicants are self-employed and thus cannot go through the PERM recruitment process.

In order to use the NIW to bypass the PERM requirement, you will need to prove to the USCIS that your endeavor in the United States is in the national interest and that waiving this requirement for you would also be in the national interest. This is done by fulfilling three criteria:

1. You must demonstrate that your endeavor in the U.S. will have a substantial positive impact on American society, economics, education, culture, technology, health, or science.
2. As the foreign applicant, you must be able to prove that you can successfully work on the endeavor by showing that you have the necessary funds, skills, experience, and education to perform the tasks.
3. Lastly, you need to convince the USCIS that the United States would stand to gain more from waiving the PERM requirement than it would from subjecting you to it.

With this in mind, you will need to submit evidence that proves that your endeavor is truly in the national interest. Along with your EB-2 I-140 and NIW ETA-750B form, you will need to submit:

• Proof of at least two years of experience
• Letters of recommendation
• Any evidence of achievements or successes in your field
• Your resume or CV
• Proof that you have either a relevant degree or exceptional ability
• Affidavits given by leaders in your field
• Licensing or certification that qualifies you to practice your trade in the particular state you will be working in.

There are many more possible items that can be submitted as evidence. However, the best way to ensure that you have enough evidence to make a solid case for your NIW, it’s best to consult an immigration attorney who can help you compile your documents and address any issues that might come up.

NIW vs PERM Conclusion

So, to wrap things up, the National Interest Waiver is a way to skirt around the PERM Labor Certification Requirement. The NIW is a way to let the USCIS know that your work in the U.S. will be beneficial to the country at large. The PERM is a way to let the Department of Labor know that your employer is not taking advantage of the immigration system to displace U.S. workers.