Highly skilled foreign nationals seeking employment-based green cards in the United States can consider applying under the first preference category extraordinary ability (EB-1A for purposes of this article), or second preference category National Interest Waiver (NIW). These are coveted visa categories because they allow the applicant to self-petition, do not require a bona fide job offer, and allow the applicant to bypass labor certification, which is an onerous and extremely time-consuming legal process.
While there are some similarities between the EB-1A and NIW categories, there are many differences that applicants should consider. Currently, the key advantage to EB-1A is that, apart from Chinese and Indian nationals, EB-1A remains current on the July 2023 Visa Bulletin, whereas EB-2 is backlogged. This means that applicants seeking permanent residence through EB-1A could concurrently file for adjustment of status with their immigrant visa petition. Conversely, EB-2 is backlogged across all nationalities, meaning applicants would have to wait for their priority date to become current. The wait is now about 18 months for “Worldwide” (i.e., many nationalities).
While immigrant visas are available under the EB-1A category, the higher preference visa category generally makes it more challenging to satisfy the legal requirements. To be eligible, petitioners must demonstrate extraordinary ability in their field of endeavor (sciences, arts, education, business, or athletics) through sustained national or international acclaim. By definition, these individuals must have risen to the very top of their fields. The regulations require the petitioner to satisfy at least 3 of 10 regulatory criteria, or provide evidence of a one-time achievement (e.g., Pulitzer Prize, Oscar, Olympic medal), as well as evidence showing that the petitioner will continue to work in the area of expertise. Even if the petitioner satisfies 3 of the 10 criteria, USCIS will consider the totality of the evidence and grant or deny the petition as a matter of discretion.
On the other hand, an NIW petition requires the petitioner to either have an advanced degree (or its foreign equivalent) or be an individual of exceptional ability in the sciences, arts, or business. Possession of a master’s degree or bachelor’s degree and five years of progressive experience in their field will satisfy the educational requirement for this position, making many educated professionals eligible for the category.
The challenging component for NIW petitions is proving that the applicants’ work is in the “national interest.” To do so, they most show the (1) that their proposed endeavor has both substantial merit and national importance; (2) that they are well-positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. Accordingly, while this type of position does require applicants to be skilled, the primary focus is on their ability to fill a need for important work in the United States, rather than the applicant reaching the pinnacle of their field.
Outside of the substantive legal differences, procedurally EB-1A provides an option for a quicker determination by USCIS. While both preference categories are entitled to premium processing, EB-1A petitions receive a determination or request for evidence within 15 days if filed with Form I-907, which requires a $2,500 filing fee. If an NIW petition is filed with premium processing, the applicant is entitled to a decision or RFE (request for evidence) within 45 days.
Maintenance of status, urgency of need to apply for permanent residence, strength of qualifications, and appreciation of risk are the primary factors an applicant should consider when evaluating which is the better category to pursue. Our office recommends that applicants bring their updated CV to a consultation with an experienced immigration attorney when evaluating their options to make this determination.
