By: Daniela Mayer and Mahsa Aliaskari

In light of prolonged Department of Labor (DOL) processing times and recent regulatory settlements involving the DOL and Department of Justice, employers are reevaluating their approaches to securing permanent residence (“green card”) sponsorship for essential talent. While the Program Electronic Review Management (PERM) process has been a staple for many U.S. companies, its multi-phase nature, extensive testing of the U.S. labor market, and mounting processing delays have rendered it increasingly impractical and costly. Notably, the DOL phase alone can now stretch up to nearly two years, causing significant disruptions, particularly in cases of position changes or company-wide restructuring.

These challenges have spurred companies to reassess their green card strategies, seeking more efficient and adaptable alternatives. One such avenue that warrants attention amidst PERM’s evolving landscape is the National Interest Waiver (NIW).

Traditionally, employers have gravitated towards PERM for its structured approach.  The lengthy processing times and often unrealistic nature of the PERM program are the catalyst for reassessing sponsorship programs and green card strategies for securing and retaining key talent.

This is where the NIW presents a compelling alternative, especially for companies with talent pools encompassing Engineers, Scientists, AI or Machine Learning Architects, or Pilots across industries. The NIW’s criteria, which focus on the potential national impact of an individual’s work, offer a departure from conventional visa categories.

Unlike the extraordinary ability visa category, the NIW does not solely prioritize individuals at the pinnacle of their respective fields, and broadens the scope of eligible candidates and fosters innovative strategies for talent acquisition and retention.

This shift in focus is particularly pertinent as well for companies operating within critical sectors of the U.S. economy. Employees with STEM backgrounds, whose work carries significant current or future implications for national interests, may find the NIW pathway particularly suitable.

The Seyfarth Immigration team specializes in partnering with companies to assess and optimize their immigration strategies. Against the backdrop of evolving PERM challenges and the NIW’s potential, there exists an opportunity to recalibrate sponsorship programs. Should you have any questions, please e-mail the authors directly.