Question: I am a highly qualified software engineer with several patents filed or pending. I have not filed for my green card as yet, but I am hoping to file and get it approved as soon as possible. What are my options? My employer does not want to go through the tedious recruitment process of a labor certification.
Answer: You may be able to skip the labor certification process if you qualify to file either EB1 as an outstanding researcher, or apply for a national interest waiver.
When a petition is filed for permanent residence on the basis of employment, there are three categories under which it can be filed. These categories are commonly called EB1 (Employment-Based Category 1), EB2 (Employment-Based Category 2) and EB3 (Employment-Based Category 3). A labor certification is required for EB2 and EB3 categories only. While it is mandatory for EB3, you are allowed to apply for a national interest waiver in the EB2 category. If your national interest waiver is accepted, you do not have to go through the Labor Certification process before applying for your permanent residence.
If you qualify to file under EB1, you can skip the entire Labor Certification process. EB1 includes those prospective permanent residents who have extraordinary ability, are outstanding researchers or professors, as well as certain L1 visa holders. The criteria for these categories are quite specific. Depending on your educational and job expertise, you may qualify as an individual with “extraordinary ability” in the sciences, arts, education, business or athletics. There are very strict criteria, but qualifying under EB1 is possible. If you qualify, labor certification is unnecessary and you can directly apply to the CIS for permanent residence.