Pros and Cons of PERM Labor Certification vs I-140 National Interest Waiver for Doctors in Medically Underserved Areas

 I am frequently asked by foreign medical graduates (FMGs) whether to pursue a PERM labor certification application, the I-140 NIW petition or both. While both options are available to International Medical Graduates (IMGs), the one that is best depends on the individual physician, his/her family situation, and his/her opinion of the sponsoring employer. Here is a summary of the key differences.

 Assuming that EB-2 visas are available, physicians pursuing the PERM may file for the I-140 and adjustment of status (I-485) concurrently once the PERM application is approved, and they may obtain a green card once the processing is complete. NIW applications may be filed without labor certification but NIW physicians must complete the 5 year service requirements before the green card will be approved.

One point worth noting is that NIW applications are not limited to physicians who applied for or were given J-1 visa waiver. On the contrary, most physicians that commit to work in a medically underserved area may apply for the NIW green card whether or not he/she received a J-1 visa waiver.

Service Requirement - Length of Commitment (NIW Requires 5 years)

NIW physicians are required to work a total of 5 years in a medically underserved area (HPSA, MUA, or MUP). With USCIS authorization, a NIW physician may switch employers and complete the service in a different underserved area. The PERM labor certification does not require a specific number of years of commitment. However, the application may not be transferred to a different employer if the physician changes employment while the PERM application is in process.

 Location of Practice for NIW (NIW requires HPSA, MUA, MUP)

 Physicians who pursue PERM applications are required to complete 5 years of service commitment in a medically underserved area. With approval, NIW applicants may switch employers, purchase a practice or self-sponsor. The PERM application does not require that a physician work in a particular location or area.

Advertising/Recruitment by Employer (PERM Requires Ads)

PERM labor certification applications require that the employer first try to extensively recruit U.S. physicians by running advertisements and postings. If unsuccessful in recruiting a U.S. physician, a PERM application may then be submitted on behalf of the alien physician. The NIW process by-passes the entire recruitment process and permits an I-140 NIW application immediately and without evidence of prior recruitment of U.S. doctors. NIW applicants need to show that the area of their practice is medically underserved.

Advance Parole, Work Authorization (EAD Card) (NIW May Apply Immediately)

One of the main advantages of the NIW application is that physicians may apply for work authorization (EAD card) and advance parole (travel document) at the time of filing the concurrent NIW I-140/I-485 petition. Concurrent filing is available in the EB-2 category for the majority of physicians since this preference has been prevalent recently. India and China are backlogged. With a work authorization, a physician may accept other employment so long as he is meeting the waiver requirements. With advance parole, an H-1B stamp is no longer necessary for travel. Some physicians choose the I-140 NIW application because they prefer to travel on the advance parole and moonlight with the EAD card without having to file for a concurrent H-1B visa with a new employer.

Application for Dependents (NIW May Apply Immediately)

Another advantage of the NIW petition is that a physician may submit adjustment of status applications, advance parole, and work authorization applications for dependent family members immediately, assuming an EB-2 preference visa is available. Physicians sometimes opt for the NIW application if their spouses need work authorization, but cannot wait until after a PERM application is approved. In fact, I have had requests for NIW petition where a physician’s children need to show evidence of application for adjustment of status to assist in applying to college.

Moonlighting Work Authorization (NIW May Apply Immediately)

NIW physicians who are able to file an I-485 concurrently with the I-140 may apply for work authorization (EAD) card. With the EAD card, the physician may then moonlight with the same employer in a different position or with other employers without having to apply for a concurrent H-1B visa for the second position. This permits the physician to accept and begin moonlighting employment without having to wait for an H-1B approval or other authorization permitting the moonlighting employment. Note, however, that NIW and J-1 waiver physicians are required to continue to meet the waiver requirements even if they accept another position. In other words, waiver candidates who moonlight must also be fulfilling their waiver commitments at the same time.

J-1 Waiver Physicians Need Not Wait 3 Years For NIW Application

Physicians who must complete a 3 year J-1 waiver service cannot file for adjustment of status until after completing the 3-year service requirement. While such physicians might apply for PERM and I-140, they have to wait until after the 3 year service to file for adjustment of status. As a result, those physicians cannot file for work authorization, advance parole or dependent applications until after the 3 year service. They must remain on the H-1B for the 3 year J-1 waiver service. However, NIW physicians may file for adjustment of status, work authorization, advance parole and dependent applications at any time regardless of the status of the 3 year service requirement so long as EB-2 visas are available.

Even though the NIW adjustment of status is not approved until the completion of the 5-year service, physicians may continue renew their EAD cards, advance parole and dependent applications for those years while the NIW petition is pending.

Processing Times for PERM vs. I-140 National Interest Waiver Petition

While it may be filed at anytime, NIW adjustment of status petitions are not approved until after the 5 year service is complete and evidence of such is submitted. However, NIW applicants may file and renew both their work authorization and advance parole applications during the entire period before the NIW is approved. On the other hand, PERM applicants may file for I-140 and adjustment of status, and might ultimately obtain an approved green card once the USCIS processing is complete. There is no additional waiting period except for those physicians who must complete the 3-year J-1 waiver service before applying for adjustment of status. PERM applicants who are able to file for adjustment of status typically complete the process in significantly less than 5 years unlike the national interest waiver applicants.

Costs of PERM v. I-140 National Interest Waiver Petition

The cost of the PERM process is generally comparable to that of the I-140 Nation interest waiver. The key difference is that the PERM process requires extensive recruiting as well as newspaper ads which can be quite expensive. The NIW process does not require such extensive recruitment. While the PERM labor certification applicants have to wait until recruitment is concluded, NIW applicants do not need to wait for recruitment. Instead NIW applicants must first obtain a letter of need from the state department of public health in support of the waiver petition.

Self-Sponsorship for Green Card Process (NIW Permits)

NIW physicians may self-sponsor for the green card process by committing to work in an underserved area for 5 years. Self-sponsorship is also available for those who purchase a practice or partner with an existing practice. Such self-sponsoring physicians must show efforts directed at completing the 5-year waiver service. Self-sponsorship is not available under the PERM process. Those physicians seeking green cards through the PERM process typically apply under traditional employment arrangements.

Family Situation Impacts Decision Between PERM and NIW

The majority of my clients that opt for the national interest waiver over the PERM process do so for family reasons, and to avoid having to obtain an H-1B stamp for traveling outside of the United States. With advance parole, NIW waiver applicants may travel freely without the hassles of seeking an H-1B or H-4 stamps for family members. Also, since the NIW permits immediate filing of the adjustment of status applications, family members and dependents who seek to work and/or travel may obtain work authorization and advance parole while the application is in process. With PERM, applicants must wait until after the PERM application is approved before applying for adjustment of status, work authorization or advance parole.