On October 8, 2026, the Department of Labor said it is suspending eight employers, including Microsoft and Adobe, from the PERM program. (SHRM) PERM is the employer's step, so when it is suspended, the employee's green card waits. Two green card routes skip PERM and let you file without an employer: EB-1A and EB-2 NIW.
- EB-1A needs no job offer and no labor certification
- EB-2 NIW can waive the job offer, and with it the labor certification, if USCIS grants the waiver
- You can file both yourself, so an employer's PERM suspension does not block them
- An approved I-140's priority date can generally carry over to EB-1A or NIW
- The bar is your record, not your employer's paperwork
Why PERM is the bottleneck
For most employer-sponsored green cards in EB-2 and EB-3, the I-140 must come with a labor certification from the Department of Labor. (8 CFR 204.5) The employer runs that process, and the October 8 action stopped it for the eight named employers. (SHRM)
Route 1: EB-1A, extraordinary ability
"Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise." 8 CFR 204.5(h)(5)
- You must provide evidence of a major, internationally recognized award, or meet at least 3 of 10 criteria, such as judging others' work, original contributions of major significance, or a leading or critical role. USCIS then decides whether your evidence as a whole shows sustained national or international acclaim. (8 CFR 204.5(h)(3))
- You can file for yourself.
More: EB-1A guide and EB-1A vs O-1A.
Route 2: EB-2 NIW, national interest waiver
"The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest." 8 CFR 204.5(k)(4)(ii)
The regulation's wording mentions only exceptional ability, but the statute, INA 203(b)(2)(B)(i), and USCIS policy apply the waiver, and filing for yourself, to advanced-degree professionals as well. (USCIS Policy Manual, Volume 6, Part F, Chapter 5)
- You must first qualify for EB-2, through an advanced degree or exceptional ability, and then show the waiver is in the national interest. The waiver is granted at USCIS's discretion, not automatically.
- USCIS applies the three-part test from Matter of Dhanasar. See the three prongs explained.
- You can file for yourself.
More: EB-2 NIW guide.
Your priority date can come with you
If you already have an approved I-140 from an employer, you do not have to start your place in line again:
"A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under section 203(b)(1), (2), or (3) of the Act for which the alien may qualify." 8 CFR 204.5(e)(1)
EB-1A is under section 203(b)(1) and NIW under 203(b)(2), so both can generally use that earlier date. You lose it only if USCIS revokes the approval because of fraud or willful misrepresentation, a material error, or revocation or invalidation of the labor certification. (8 CFR 204.5(e), priority date retention)
Without an earlier approval, the priority date for EB-1A or NIW is the date the completed, signed petition, with all initial evidence and the correct fee, is properly filed with USCIS. (8 CFR 204.5(d))
Which route might fit
| Employer PERM route | EB-1A | EB-2 NIW | |
|---|---|---|---|
| Labor certification | Required | Not required | Waived if USCIS grants the NIW |
| Who files | Employer | You or an employer | You or an employer |
| Depends on one employer | Yes | No | No |
| What you must prove | Job, recruitment, wage | Sustained acclaim | Advanced degree or exceptional ability, plus national interest |
Before you switch routes
- EB-1A and NIW have a higher evidence bar than an employer PERM case. They are not right for everyone.
- Visa Bulletin waits still apply by category and country of birth. Check the current bulletin for EB-1 and EB-2.
- The regulations do not limit you to one I-140, so many people pursue a self-petition alongside an employer case. If your status does not allow immigrant intent, for example TN or F-1, talk to an attorney first.
- An updated CV with dates, roles and results
- Your I-140 approval notice and priority date, if you have one
- Proof of judging, publications, press, awards or memberships
- Letters of support from experts who know your work
- A short statement of the work you plan to continue in the US
This is general information, not legal advice. An immigration attorney can confirm which route fits your record.
Sources
- 8 CFR 204.5, employment-based immigrant petitions, paragraphs (d), (e), (h) and (k)
- SHRM, "PERM Suspensions Latest Blow to Immigration Programs," October 8, 2026
Frequently asked questions
Do EB-1A and NIW need a labor certification?
EB-1A: no, under 8 CFR 204.5(h)(5) it requires neither a job offer nor a labor certification. EB-2 NIW: not if USCIS grants the waiver, which it may do when waiving the job offer is in the national interest. If the waiver is refused, EB-2 needs a labor certification.
Can I file EB-1A or NIW myself?
Yes. Both can be self-petitioned, so your employer does not file them and a PERM suspension does not block them.
Will I keep my old priority date?
If you have an approved I-140 in EB-1, EB-2 or EB-3, 8 CFR 204.5(e) generally lets you keep the earliest priority date for a later petition in those categories, including EB-1A or NIW.
What is my priority date for a new EB-1A or NIW?
Without an earlier approved I-140, it is the date the completed, signed petition, with all initial evidence and the correct fee, is properly filed with USCIS.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
