There are two ways in which a foreign national can bypass the requirement of a job or job offer and labor certification/PERM and apply for U.S. permanent residence. They are the priority worker EB1 category for Aliens of Extraordinary Ability and the exceptional worker EB-2 National Interest Waiver (NIW) category. Although these two are part of the employment based immigrant categories, neither require actual employment or even a job offer prior to the filing of the application or its approval.
The requirements for each category are quite stringent and a casual observer may believe that a Nobel prize is required to get an EB1 petition approved. This, however, is not the case. Likewise, the NIW requirements can be overcome with a strong legal argument.
The benefits of the EB1 and NIW are enormous: Speed, Cost, and Freedom.
- A normal labor certification application (PERM) process can take years. The labor certification must be approved by the U.S. Department of Labor before the the employer can even file a sponsorship petition with USCIS. EB1/NIW petitions can be concluded within one year.
- A PERM Labor certification requires costly advertising fees and the employer is burdened with the monetary and time expense. Employers may attempt to pass these costs on to the employee through lower wages.
- While a PERM and the ensuing USCIS immigrant petition filed by the employer are pending the employee is tied to the petitioning employer until the process is completed. During this time, the employer wields an enormous amount of power over the employee, which places the employee in a very weak position.
If in the United States, an applicant may submit both an EB1 and an NIW petition simultaneously. At the same time, the foreign national may apply for permanent residence for him or herself and his or her spouse and children. When a permanent residence application is filed, the applicant and the spouse may also apply for work permits and travel documents (Advance Parole) to be used during the pendency of the permanent residence application (AOS). The work permit allows its holder to work for any United States employer and the travel document allows and enables its holder to travel internationally during the pendency of the AOS process without abandoning their petitions.