EB-1A or/and EB-2 NIW
F-1, H-1B, and L-1 are non-immigrant visas for a limited duration. People who want to stay in the U.S. permanently have a number of options. Two of them are similar to each other but not identical — EB-1A and EB-2 NIW ("National Interest Waiver"). (“EB” means the visa is Employment Based.) Some applicants may decide to pursue both of those paths at the same time. It's one of the many things an applicant usually discusses with their lawyer.
EB-1A
For an EB-1A immigrant petition, an applicant must be one of the few at the top of their field and have achievements that will sufficiently impress USCIS. The applicant must show they have been recognized for their "Extraordinary Ability" in science, art, education, business, or athletics — and they intend to continue to work in their field of expertise — and this will benefit the United States.
This is relatively easy to do if:
(a) the person has won an Oscar, a Pulitzer Prize, an Olympic medal, or other major internationally recognized award; and
(b) the person will continue to work in their area of expertise.
But if an applicant does not have that type of impressive one-time achievement, they must meet other multiple criteria listed by USCIS. No offer of employment or labor certification is required.
To get an EB-1A immigrant petition approval, the applicant will typically need the help of a lawyer —
• when deciding exactly how to describe the field of expertise;
• when preparing the relevant and persuasive recommendations that will be needed from experts in the field;
• when gathering evidence showing the extraordinary things achieved so far;
• when gathering evidence showing how the applicant will continue to do similar sorts of things in the field in the future; and
• when preparing a comprehensive memo likely to persuade decision-makers at USCIS that the EB-1A petition should be approved.
What the EB-1A petition says about who knows the applicant — and who the applicant knows — is also important. It sets the tone of the petition.
EB-1A is especially attractive for people from India who have been waiting for many years to file for a Green Card in other employment-based categories such as EB-2 (for certain professionals with advanced degrees or having exceptional ability) and EB-3 (for certain skilled workers, professionals, or other workers).
An applicant does not need an employer or sponsor for EB-1A. The applicant can “self-sponsor.” But it is more difficult to show how the applicant will succeed in the future without an employer.
The EB-1A process encourages the applicant and their lawyer to work together as a team. Together they compile essential documents — and obtain necessary letters of recommendation — and find experts to provide impressive expert opinions. And the lawyer helps the applicant stay away from anything that USCIS might consider to be fabricated.
The EB-1A process involves the preparation of a long persuasive memo, presenting a compelling narrative in support of the applicant's petition. The memo should be structured in a way that flows smoothly from each of the EB-1A criteria to the next. The content of the memo should go hand-in-hand with the legal requirements.
If USCIS has questions or doubts about a petition, it is likely to issue to the applicant a “Notice of Intent to Deny” or an “RFE” (Request for Additional Information) — and the applicant's lawyer would then be expected to provide a response that is detailed and persuasive.
When the petition is approved, certain family members may be eligible to apply for admission to the U.S. in E-14 immigrant status (for the spouse) or E-15 immigrant status (for unmarried children under the age of 21).
EB-2 NIW
For EB-2 NIW, a professional must show that they either (1) have an advanced degree, higher than a Bachelor's degree, or (2) have Exceptional Ability — "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."
And what is the difference between that "Exceptional Ability” for EB-2 NIW and the "Extraordinary Ability" required for EB-1A? It is widely believed that the EB-1A standard is higher. And the processing time for EB-2 NIW has historically been longer.
For the advanced-degree part of EB-2 NIW, a U.S. Bachelor's degree or foreign equivalent, followed by at least five years of progressive experience in the specialty, is considered to be the equivalent of a Master's degree. The offered position must be a professional occupation.
Eligibility for a National Interest Waiver (NIW) has three prongs:
• evidence that your endeavor has substantial merit and national importance;
• evidence that you are well-positioned to advance your endeavor; and
• evidence that on balance, it would be beneficial to the United States to waive the job offer and the Permanent Labor Certification requirements.
While not required, letters from interested government agencies or quasi-governmental entities in the U.S. (for example federally-funded research and development centers) can be helpful evidence and, depending on the contents of the letters, can be relevant to all three NIW prongs.
A basic EB-2 immigrant petition (without an NIW) usually requires going through the Program Electronic Review Management (PERM) process and getting a Labor Certification from the Department of Labor before the petition can be filed. PERM is a multi-step, time-sensitive process, and an applicant almost always asks their lawyer to help with this.
An EB-3 immigrant petition is for (1) professionals with at least a Bachelor’s degree or foreign equivalent; (2) skilled workers where the position requires at least two years of training or experience; and (3) unskilled workers with less than two years of training or experience. EB-3 usually requires completion of the PERM process.
To file any immigrant petition, the applicant does not need to be in the U.S. The filing and approval of the EB immigrant petition does not confer any immigration status. A further step is required. If the applicant is in the U.S., they can file a Green Card application, Form I-485. And while that application is pending, the person can stay in the U.S., with the status of “Green Card Application Pending,” until the Green Card is issued or denied. If it is denied, and the applicant does not have any other status to remain in the U.S., the applicant must depart the U.S.
If the applicant is outside the U.S., they can apply at a U.S. Consulate abroad for an “Immigrant Visa” to enter the U.S. However, the applicant cannot file the Form I-485 or the application for an Immigrant Visa abroad until they have a visa immediately available, based on their EB category. For many applicants from certain countries, there is a multi-year wait before the visa is available to them to apply for a Green Card.
An applicant usually discusses all this and more with their lawyer.