Workers affected by the U.S. Department of Labor’s suspension of PERM processing at eight technology companies may consider EB-1A or EB-2 National Interest Waiver petitions—but neither category is an automatic replacement for an employer-sponsored green card case.
On October 8, 2026, the Department of Labor suspended Microsoft, Adobe, Cognizant, Infosys, Tata Consultancy Services, Wipro, HCL Technologies and Capgemini from the Permanent Labor Certification Program. Officials said the department would stop accepting new PERM applications involving these employers and pause pending applications. No end date was announced. (whitehouse.gov)
As explained in Day1CPT.org’s report on the eight-company PERM suspension, the action affects a common route to employer-sponsored EB-2 and EB-3 green cards. It does not, by itself, establish that an individual employee—or any of the companies—committed an immigration violation.
An affected worker does not simply “transfer” a frozen PERM application into EB-1A or EB-2 NIW. The worker must file a new Form I-140 petition and independently satisfy the requirements of the selected immigrant category.
Both routes can avoid PERM, but they apply different legal standards:
| EB-1A extraordinary ability | EB-2 National Interest Waiver | |
|---|---|---|
| Employer sponsorship required? | No | No, when requesting an NIW |
| PERM required? | No | Waived if USCIS grants the NIW |
| Main eligibility question | Has the applicant demonstrated sustained national or international acclaim? | Does the applicant qualify for EB-2, and would waiving the job offer and PERM requirements benefit the United States? |
| Main evidentiary focus | Recognition, achievements and field-wide impact | Qualifications, proposed endeavor, national importance and ability to advance the work |
For EB-1A, an applicant normally must document a major internationally recognized achievement or satisfy at least three of 10 evidentiary criteria. Meeting three criteria is only the first step; USCIS then evaluates whether the complete record demonstrates sustained acclaim and recognition among the small percentage at the top of the field. (uscis.gov)
For EB-2 NIW, the applicant must first qualify for EB-2 as an advanced-degree professional or person of exceptional ability. The applicant must then show that the proposed endeavor has substantial merit and national importance, that the applicant is well positioned to advance it, and that waiving the normal job-offer and labor-certification requirements would benefit the United States. (uscis.gov)
A senior title, high salary or employment in artificial intelligence, cybersecurity or another important industry does not establish eligibility by itself. The evidence must satisfy the specific legal test. Day1CPT.org’s EB-1A and EB-2 NIW comparison provides a closer look at the differences.
EB-1A or NIW may be worth evaluating when a worker has evidence that exists independently of the suspended employer. Examples may include:
Letters from supervisors or industry experts can help explain the evidence, but generic praise is unlikely to establish extraordinary ability or national importance. Claims about impact should be supported by objective documentation whenever possible.
The applicant’s profile—not the employer’s PERM suspension—determines whether EB-1A or NIW is viable.
Filing or obtaining approval of an EB-1A or NIW Form I-140 does not, by itself, grant immigration status, work authorization or permission to remain in the United States.
H-1B workers must continue to maintain valid H-1B employment or another lawful basis for staying and working in the country. F-1 students and OPT or STEM OPT workers must separately comply with the rules governing their student status and employment authorization.
An approved I-140 can support certain H-1B extensions beyond the usual six-year limit when the applicable requirements are met. One-year extensions may also be available in some cases involving a qualifying labor certification or I-140 filed at least 365 days earlier. These rules are fact-specific, however, and filing a new self-petition does not automatically extend an expiring H-1B approval. (uscis.gov)
Workers close to their H-1B limit should have their remaining time, recapturable travel days, PERM filing date and I-140 history reviewed promptly.
I-140 approval is not the same as receiving a green card. The applicant must also wait until an immigrant visa is available under the Department of State’s Visa Bulletin.
For October 2026, the Final Action Date for India is February 1, 2023 in EB-1 and November 1, 2013 in EB-2. The separate Dates for Filing chart lists July 1, 2024 for India EB-1 and January 15, 2015 for India EB-2. Applicants adjusting status in the United States must also check which chart USCIS authorizes for filing that month. (travel.state.gov)
A worker with a previously approved employment-based I-140 may generally be able to retain the earlier priority date for a subsequent EB-1, EB-2 or EB-3 petition, subject to regulatory exceptions. A pending PERM application alone generally does not provide the same priority-date protection for a newly filed self-petition. (uscis.gov)
Before pursuing a new immigrant petition, an affected worker should determine:
Workers should not withdraw an existing PERM or employer-sponsored petition solely because another category appears available. Multiple filings can interact with priority dates, H-1B extensions and pending adjustment applications, making individualized review important.
No. EB-1A and EB-2 NIW require separate Form I-140 petitions based on their own eligibility standards. A frozen PERM case does not automatically convert into either category.
No. Filing an I-140 does not automatically extend H-1B status or employment authorization. An employer must separately request any qualifying H-1B extension, and the worker must meet the applicable extension requirements.
Potentially. Immigration law does not generally require an applicant to hold H-1B status before filing an EB-1A or NIW petition. However, the I-140 does not extend F-1 status, CPT, OPT or STEM OPT authorization. Because an immigrant petition can also affect future visa and travel planning, students should obtain individualized advice before filing.
A worker with a previously approved EB-1, EB-2 or EB-3 I-140 can generally retain the earliest approved petition’s priority date, subject to exceptions such as certain revocations involving fraud, material misrepresentation or agency error. A pending PERM application without an approved I-140 generally does not secure that date for a new EB-1A or NIW petition.
Yes, a person may file separate petitions in multiple employment-based categories if each petition independently meets its requirements. Approval of one does not guarantee approval of the other, and visa availability must still be evaluated separately.