Microsoft PERM Suspended: Can Employees Apply for NIW or EB-1A Instead?

Following the federal government’s suspension of PERM processing for Microsoft, Adobe and six IT companies on October 8, 2026, affected employees may be wondering whether they can pursue permanent residence without relying on their employer’s labor certification.

Two immigration categories are especially relevant to that question: EB-2 National Interest Waiver (NIW) and EB-1A extraordinary ability. Both can allow eligible applicants to self-petition without obtaining a PERM labor certification.

What is the difference between PERM and NIW?

Traditional employer-sponsored EB-2 and EB-3 green card cases generally involve a labor certification process. The employer sponsors the worker and completes the required recruitment and labor certification steps.

An EB-2 National Interest Waiver can waive the job offer and labor certification requirements for eligible applicants whose proposed endeavors satisfy the national interest standard. Applicants must first establish eligibility for the underlying EB-2 classification and then satisfy the requirements for a national interest waiver.

Who might qualify for NIW?

USCIS evaluates whether the proposed endeavor has substantial merit and national importance, whether the applicant is well positioned to advance it, and whether, on balance, waiving the job offer and labor certification requirements would benefit the United States.

Some professionals working in artificial intelligence, advanced manufacturing, cybersecurity, health care or other fields may have evidence relevant to these requirements. But working at a prominent technology company or in an important industry is not enough by itself. The applicant must establish how their specific proposed endeavor meets the NIW standard.

What about EB-1A?

EB-1A is designed for individuals who can demonstrate extraordinary ability and sustained national or international acclaim. Evidence may include awards, publications, judging, original contributions, media coverage, leading or critical roles, and other qualifying accomplishments.

Applicants generally must establish the applicable evidentiary criteria and satisfy USCIS’s overall extraordinary ability evaluation. EB-1A is not simply an easier replacement for PERM.

Can someone file NIW or EB-1A while working on H-1B?

Potentially, yes. An eligible person may pursue a self-petition while maintaining valid H-1B employment authorization.

However, filing or approving an I-140 petition does not automatically grant permanent residence, employment authorization or a new immigration status. The applicant must separately consider visa availability and any applicable adjustment of status or consular processing requirements.

Can an existing PERM priority date be retained?

In some circumstances, an applicant with a previously approved employment-based I-140 may retain an earlier priority date for a later qualifying petition. Priority date retention is subject to specific immigration rules and exceptions.

A pending PERM application alone should not be assumed to establish a reusable priority date for a future NIW or EB-1A petition. This is an important issue to review with an immigration attorney before changing strategies.

What evidence might an NIW or EB-1A applicant need?

Depending on the category, applicants may organize evidence such as:

• Publications and citations
• Recommendation and expert letters
• Awards and professional recognition
• Judging and peer-review records
• Evidence of original contributions
• Employment and leadership records
• Proposed endeavor plans
• Documentation supporting broader impact

Each piece of evidence should be relevant to the actual legal requirements.

Bottom line

The PERM suspension does not mean every affected employee has lost every potential path to a green card. NIW and EB-1A may offer independent petition options for qualifying individuals. But eligibility, timing, priority date retention and maintenance of lawful status all require individualized evaluation.