When an EB-2 lawyer compares PERM and NIW, there are two questions first: is there a U.S. employer willing to go through labor certification for a permanent position, and can your endeavor meet the national interest standard. If you have an employer and the position itself genuinely requires an advanced degree, PERM is usually the first thing to look at; if you have no suitable employer but have a concrete plan for your work, NIW may be assessed. NIW is not a separate category but a national interest waiver under EB-2, and both paths require you to meet EB-2's advanced degree or exceptional ability requirements first, with the same visa backlog. The information below is current as of November 6, 2026.
Comparing the Two Paths
| Item | PERM path | NIW path |
|---|---|---|
| Who files the I-140 | Employer | You or the employer |
| Job offer | Required | Waiver may be requested |
| Labor certification | Department of Labor approval required | Waived, but the related parts of the form must still be submitted |
| Review focus | Position requirements, market test, personal qualifications | Importance of the endeavor and personal qualifications |
| Priority date | The date the Department of Labor accepts the PERM application | The date Form I-140 is properly filed |
| Premium processing target | 15 business days | 45 business days |
How PERM Works
PERM is led by the employer, and the general steps are:
- Determine the actual minimum requirements and duties of the position.
- Request a prevailing wage determination from the Department of Labor. As of September 30, 2026, the Department of Labor was processing PERM-type wage requests received in June of that year.
- Complete recruitment and internal notices as required, to test whether there are qualified U.S. workers.
- File Form ETA-9089 through the FLAG system. As of October 31, 2026, cases whose analyst review was completed in the last 30 days averaged about 300 days.
- After approval, the employer files the I-140 within 180 days, or it expires.
Two points are easy to overlook. First, the position itself must reasonably require an advanced degree; it is not enough that the employee has one. Second, the employer may not charge or pass on to the employee the cost of PERM or the employer's attorney fees, and may not collect them indirectly, such as through wage deductions. The employee can only bear the cost of an attorney he or she separately hires; when the employer and employee share the same attorney, the attorney fees for the PERM portion are borne by the employer.
In March 2026 the Department of Labor proposed raising prevailing wage levels, including for PERM. As of the date of this article, we have not found a final rule, so employers should keep this in mind when budgeting.
How NIW Is Assessed
NIW shifts the focus from the position to the endeavor: you must show the endeavor has substantial merit and national importance, that you are well positioned to advance it, and that on balance a waiver would benefit the United States. A nationwide shortage of talent is not by itself enough to meet the third prong. It does not depend on one employer, but the applicant must explain the endeavor clearly and support it with evidence. For the detailed standard, see Who qualifies for NIW.
Visa Backlog and Fees
In the November 2026 Visa Bulletin, the EB-2 Final Action Date for people born in mainland China is October 1, 2021 and the Date for Filing is January 1, 2023; for most other countries they are April 1, 2025 and March 15, 2026. USCIS has confirmed that in November 2026 the I-485 may be filed using the Dates for Filing chart, with later months announced separately, and green card approval still has to wait until the Final Action Date. A May 2026 USCIS memorandum (PM-602-0199) describes adjustment of status as exceptional discretionary relief; officers look at status records and at whether the person could have used consular processing instead. Holding a dual-intent status also does not mean approval is certain. Evaluate this before filing the I-485.
PERM requires a wage determination, recruitment and Department of Labor approval before the I-140 can be filed, and the priority date is set when the Department of Labor accepts the case. NIW does not need these steps at the start, and the priority date runs from the I-140 filing. Which path suits you depends on approval risk and job stability.
I-140 paper filing $715, online $665. Asylum Program Fee: $600 for a general employer, $300 for a small employer or self-petitioner, $0 for a nonprofit. Premium processing fee $2,965.
What to prepare
- Degrees, credential evaluations, and proof of work experience after graduation.
- PERM: position description, basis for the minimum requirements, employer financial materials, recruitment records.
- NIW: endeavor plan, evidence of achievements, independent recommendation letters.
- Current status documents and records of prior immigration filings.
Contact us
If you are not sure which path to take, you can ask an EB-2 lawyer to look at both paths together; call 347-618-3386. Lu Xin Law Offices is located at 36-09 Main Street Suite 5-D5, Flushing, New York. Our responsible attorney, Michael R. Curran, is licensed in New York and New Jersey. For details, see Immigration Legal Services.
FAQ
Is NIW a separate immigration category?
No. NIW is a national interest waiver under EB-2, and you must first meet EB-2's advanced degree or exceptional ability requirements.
Can the employee bear the cost of PERM?
The employer cannot charge or pass on to the employee the cost of PERM or the employer's attorney fees. The employee can only bear the cost of an attorney he or she separately hires.
How is the priority date calculated on the two paths?
On the PERM path the priority date is the date the Department of Labor accepts the PERM; on the NIW path it is the date the I-140 is formally filed.
Sources: uscis.gov, uscis.gov, dol.gov, flag.dol.gov, flag.dol.gov, ecfr.gov, ecfr.gov, federalregister.gov, uscis.gov, uscis.gov, uscis.gov, travel.state.gov, uscis.gov. The information above is current as of November 6, 2026. Immigration rules and fees may change, so check the latest official requirements before you file.
Attorney Advertising. This article is general information and is not legal advice on any particular case. Eligibility, procedures and outcomes depend on the facts of each case, the applicable law and the decision of the government agency.