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Shortly, for individuals who may qualify for either EB-1A or NIW, choosing either EB-1A or NIW is a better strategy than choosing labor certification.

EB-1A and EB-2 NIW do not require labor certification (also true for EB-1B and EB-1C). Furthermore, a petition in EB-1A or EB-2 NIW (but not EB-1B and EB-1C) is a so-called independent petition and the petitioner is not tied to a specific employer or a specific job deion. The only requirement is that the person must stay in the same or similar field.

The importance of the above characteristics is based on following aspects.

Procedural differences:

(1) Because the labor certification is a very lengthy process (could be easily more than two years in some geographic areas), bypassing that process makes EB-1A (also EB-1B and EB-1C) and EB-2 NIW much faster than other categories requiring labor certification.

(2) Many employers are unwilling to initiate a labor certification process to support a foreign employee. If you work for a university or a research institute, for example, it is very common that your employer has a policy not to initiate a labor certification process. In such a case, the process is simply unavailable to you because one cannot do a labor certification without the participation of the employer.

(3) Free of labor certification, an EB-1A or EB-2 NIW petitioner enjoys much greater freedom in employment. Because a labor certification is essentially a contract between the government and the immigration petitioner and the beneficiary, failing to satisfy the conditions set forth in the labor certification will result in a termination or revocation of the associated immigration application. This is a serious matter which often catches up on people by shocks. Leaving the job, change of job deion or location, an employer’s going out of business, or even a merger may be deemed as a failure to satisfy the conditions required by the previously approved labor certification and thus jeopardizes the related application. The period of time your application is subject to such jeopardy can be very long. Due to the length of each step on the road to obtain a green card, you could easily be stuck with one employer and one specific job for several years before you gain your freedom. Notice that your own persistency and forbearance often does not matter because sometimes it is a change on part of the employer that creates trouble. In other words, the situation is beyond your control.

The new immigration law alleviates the above problems by allowing one who has an I-485 pending for more than 180 days to change employer, as long as the new job is substantially similar to the previous one. However, the other aspects of the employment conditions inherent to labor certification remain effective. These conditions include the prevailing wage requirement and the requirement for having substantially the same job as prescribed in the underlying labor certification except for the change of the employer. In addition, the new law does not change the delays caused by other steps.

Substantive differences:

If the above about labor certification does not already sound dire enough, one should also be mindful that the process of labor certification isn't just a pain. It is, in fact, a process that is designed to disqualify many applications, rather than merely slow people down.

Many H-1B workers mistakenly believe that since they were qualified in a labor condition application when they applied for H-1B, they essentially also qualify for permanent labor certification and it is only a matter of time to get that. The hot job market in late 1990's has reinforced that misunderstanding. This is wrong because of the following reasons.

The labor condition requirement in H-1B and the permanent labor certification requirement for green card application are very different. In H-1B, the Department of Labor is mainly concerned with the prevailing wages and wants to make sure that an employer is not hiring a foreigner in place of an American merely because he can hire the foreigner more cheaply. As a result, as long as the employer is offering a foreigner the prevailing wage, the DOL seldom rejects an H-1B application. In contrast, in a process called attestation of labor certification, the job position must be advertised based on "objective minimum qualifications" that are deemed essential and necessary to perform the job. Job advertisement in the attestation cannot require competitive qualifications based on personal merits. During the attestation, if there is an American worker possessing objective minimum qualifications responses to the advertisement, regardless of how marginal the US worker's qualifications are, the process of labor certification is likely to fail. Under such circumstances, it is irrelevant whether the employer believes the available American worker, although having objective minimum qualifications for the job, is in fact much less qualified than the alien.

For this reason, labor certification is not just more restrictive than EB-1A or NIW, but could also be unlikely to succeed in many people's situations. This is particularly true in the labor market of an economic downturn. The situation during the late 1990's was quite exceptional in which severe labor shortage in high-tech areas made labor certification process quite easy, albeit very slow. This indeed left a false impression on many people that although labor certification is long and restrictive in terms of the employment, it is eventually a safe bet. Many are already finding that this is not the case.

In summary, individuals having necessary qualifications should file a petition in EB-1A or EB-2 NIW whenever it is feasible.