The first step towards employment based immigrant visa is Labor Certification and Filing a Petition. The applicant’s prospective employer or agent must first obtain a labor certification approval from the Department of Labor. Once received (if required), the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category.
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States.This is the PERM process.
The National Interest Waiver (NIW) is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest. A person who qualifies for the National Interest Waiver is deemed to be of such value to the United States that he/she is not required to process a labor certification or have a job offer. NIW is not for everyone so it is important to evaluate the situation.
However, The H-1B Visa is a temporary work visa available for persons qualified as professionals who are hired to work in specialty professional occupations. This is a dual intent visa.
A common misconception is that a person on a non-immigrant visa that requires non-immigrant intent must switch to a dual-intent visa before they can apply for a green card. Dual-intent visas include H, O, L and P visas. However, this is not true. While you may hold a visa that requires non-immigrant intent, you are not prohibited from changing your mind and seeking permanent residence at a later time. For this reason, you are able to switch directly from a non-immigrant visa such as F or J to an immigrant visa such as EB-1A or EB-2 (NIW). There may be certain factors that do not allow you to switch such as INA 212 (e) two year home residency requirement attached to certain J visa, but obtaining an H-1B visa would not alleviate these factors.
Your employer can begin the PERM application, but you may need an underlying H-1B by the time that you file the I-140. Given the timeline above, this might work for you. Be sure to have a counsel review your strategy before you implement it.
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