Filing an EB-2 NIW While Your PERM Is Pending

EB-2 ordinarily requires a job offer and a Department of Labor labor certification. That process tests the labor market: it is designed to ensure that admitting foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. The employer runs it, and the resulting petition rests on the certified position.

The national interest waiver sets that requirement aside. The statute lets USCIS waive the requirement that a person's services be sought by an employer in the United States when it deems the waiver to be in the national interest, and the regulation lets the director exempt the job offer, and with it the labor certification, on that basis. 8 U.S.C. section 1153(b)(2)(B)(i).

A petition accompanied by an individual labor certification takes as its priority date the day DOL accepted the labor certification application for processing. A petition that requires no labor certification — which is what a waiver petition is — takes the day the completed, signed petition, with all initial evidence and the correct fee, is properly filed with USCIS. 8 C.F.R. section 204.5(d).

So the two petitions can carry different dates. An approved petition in the first, second, or third employment-based preference gives you its priority date for any later petition in those preferences, and where you hold more than one approval you are entitled to the earliest date of them.

Two cautions travel with that rule. Retention runs off approved petitions, so a filing that is merely pending is not banked. And a denied petition establishes no priority date at all. 8 C.F.R. section 204.5(e)(1), (e)(3).

The waiver petition is your filing. Where the exemption is sought, you — or anyone acting on your behalf — may be the petitioner, and because no job offer is required, you file as a self-petitioner. One paperwork wrinkle survives the waiver: the petition still includes the employee-specific portions of a permanent labor certification form, submitted without DOL approval.

Employer involvement is optional rather than structural. USCIS treats a job offer, or communications with prospective employers, as relevant to the circumstances in which you intend to carry out the endeavor and to the feasibility of that plan — relevant, but never required.

One drafting point matters more than people expect. The certified position is a job with minimum requirements. Your endeavor is narrower than the general occupation and describes the work you propose within it. A petition that restates a job description has already conceded the first prong.

Is the endeavor yours, or your employer's? The officer looks for broader implications for a field, a region, or the public — not a well-performed role inside one company.

On the third prong, what is the argument for waiving the job offer here? With an employer pursuing a labor certification, the record usually leans on the benefit of your contributions even assuming other qualified workers are available, on urgency, or on skills the minimum requirements cannot capture.

Does the petition stand on its own evidence? A self-petition resting entirely on employer-generated documents tends to read as an employer's case filed under a different cover.

The first question we ask is what your endeavor would be if your current employer were not in the picture. If there is a clear answer, a parallel filing usually makes sense; if the answer is the job itself, you hear that before you spend money on the petition.

The two records stay separate on purpose. Blending the certified position and the proposed endeavor is the fastest way to make a self-petition read like a labor certification case.

Priority-date consequences get mapped against your actual filings before anything goes out the door. Flat fees, quoted once we have seen the PERM timeline.