Comparing EB1A - EB1B - EB2A

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EB1A vs. EB1B vs. EB2A - U.S. Green Card Options

Being employment based, the National Interest Waiver or NIW is a second preference immigration application. The Labor Certification requirement is requested to be waived off due to it being “in the U.S. national interest”, hence its name.

Applicants require an advanced degree (Master’s or above) to apply for a green card under employment-based (EB) immigration. The three preferred options include:

EB1A: Aliens with extraordinary ability in science, art, and business
EB1B: Outstanding researchers and professors
EB2 NIW: Members of professions holding advanced degrees applying for a waiver of Labor Certification in the national interest

Holding a U.S green card allows many talented scientists and researchers to stand better chances when they apply for lucrative job positions. Many advanced degree professionals do not know how to apply for the U.S. green card in the above three preferred EB immigration categories, and instead, apply for a Labor Certification, which is not the best option for those people who qualify for one of the above three high profile immigration classifications.

What Is An EB2 NIW (National Interest Waiver)?

An EB2 NIW alien applicant must establish that his or her work is in the national interest of the United States and must have an advanced degree combined with exceptional ability in sciences, arts or business, to qualify under this category (EB2 NIW). An EB2 NIW alien applicant can file the EB2 NIW (National Interest Waiver) green card application by himself or be sponsored by a U.S. employer. However, while an EB2 NIW (National Interest Waiver) application is pending, an EB2 NIW alien applicant can also file additional green card applications in other categories

Several new employment based immigration categories were created under the Immigration Act of 1990. Members of the professions holding advanced degrees and aliens of exceptional ability in the arts, sciences or business have been included in Section 203(b)(2)(A). A permanent job offer and an approved Labor Certification issued by U.S. Department of Labor (DOL) is mandatory for this visa category, commonly referred to as EB2.

There is a labor screening process to protect U.S. workers and the labor market in the United States and to ensure that alien workers seeking immigrant visas are not displacing qualified U.S. workers before issuing this Labor Certification.

To avoid the requirement of a job offer and a Labor Certification, a provision for a “National Interest Waiver” for the same was included into The Immigration Act of 1990. The Act states that “the Attorney General may, when he deems it to be in the national interest, waive the requirement…that an alien’s services in the sciences, arts or business be sought by an employer in the United States.” Both subcategories of EB2, members of the professions holding advanced degrees and aliens of exceptional ability are eligible for the EB2 NIW (National Interest Waiver).

Waiving off the Labor Certification can be extremely useful to the academic community since most scientists, researchers, international students and university teachers have at least a Master’s degree. The United States Citizenship and Immigration Services (USCIS) also equates a Bachelor’s degree plus five years of progressive work experience in their specialty area to an advanced degree.

It is a statutory provision for the EB2 NIW (National Interest Waiver) petitioner to substantially benefit the United States’ national economy and its cultural or educational or welfare interests, prospectively. As per the regulation, an alien having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business is defined as an exceptional ability in the sciences, arts, or business.

Seven Factors Suggested By USCIS For EB2 NIW Applications

An applicant for the EB2 NIW (National Interest Waiver) category normally requires an offer of employment, except when he is seeking an exemption from the job offer requirement. This requires him to file the petition in the EB2 NIW (National Interest Waiver) category, where the USCIS will determine if this exemption would be in the U.S. national interest. A waiver of job offer means a Labor Certification is not required.

The job offer and Labor certification Can be waived off if an EB2 NIW alien applicant can prove that his work will be of benefit to the U.S. in the future. He must prove that his significant contributions will impact the country’s economic, employment, educational, housing, environmental, or cultural situation, or on some other important aspect of U.S. life, favorably and will have a national impact.

The field of work must have its own merit and should prospectively benefit the U.S. national interest to a larger extent, which the EB2 NIW applicant will have to prove, substantially. However, the USCIS, interprets this requirement in turn to show that going through this Labor Certification process forcefully, does have an impact on U.S. national interest.

A professional who either holds an advanced degree or has exceptional ability in the sciences, business or arts falls within the second preference employment-based category, and in turn, qualifies for the EB2 NIW (National Interest Waiver) category.

The USCIS only requires that the EB2 NIW alien’s presence must have a “prospective national benefit” while filing for the EB2 NIW (National Interest Waiver) application. If the EB2 NIW alien applicant meets one or more of the following requirements by USCIS, the EB2 NIW alien applicant may be granted the EB2 NIW (National Interest Waiver). They are:

Improve the U.S. economy
Improve wages and working conditions of U.S. workers
Improve education and training programs for U.S. children and underqualified workers
Improve health care
Provide more affordable housing for young and/or older, poorer U.S. residents
Improve the environment of the U.S. and making more productive use of natural resources
A request from an interested U.S. government agency or improve international cultural understanding

It is sufficient if an EB2 NIW alien applicant meets just one or more of the above criteria to qualify for the EB2 NIW (National Interest Waiver) petition. The USCIS regularly employs a set of regulations or “case law criteria” for determining the EB2 NIW (National Interest Waiver) petition.

Documents supporting the EB2 NIW applicant’s high level of competence alone are not sufficient to receive an EB2 NIW (National Interest Waiver) approval. The EB2 NIW applicant must prove his unique and exceptional skill, experience, or knowledge, that sets him apart from his professional peers.

EB2 NIW Petition – Case Law Criteria, Matter of NYSDOT And Dhanasar

Since the USCIS has not arrived at a clear definition of national interest, it has requested the USCIS Service Centers to adjudicate EB2 NIW (National Interest Waiver) petitions on a case by case basis.

The USCIS’ Administrative Appeals Office (AAO) had previously issued several decisions for the EB2 NIW visa category that described the applicable standard. The AAO decided that the EB2 NIW applicant’s presence must provide a benefit to the country beyond a “prospective national benefit” which all exceptional ability and advanced degree aliens must establish prior to their admission. Based on these decision, the USCIS had granted many such waivers.

In 1998, the Matter of New York Department of Transportation (NYSDOT) was established to enforce stricter standards for obtaining EB2 NIW (National Interest Waiver) petitions. The NYSDOT case sets up a threeprong test to establish eligibility for the EB2 NIW (National Interest Waiver) petition:

The EB2 NIW applicant must be employed in an area of substantial intrinsic merit;
The EB2 NIW applicant must demonstrate that the proposed benefit will be national in scope; and
The EB2 NIW applicant must demonstrate persuasively that the national interest would be adversely affected if a Labor Certification were demanded, requiring petitioners to establish that the alien possesses unique knowledge, abilities, or experience that set him / her apart from others in the field.

In Matter of Dhanasar of the USCIS, AAO created a precedential new test for an EB2 NIW (National Interest Waiver) petition in sustaining the appeal, and approved the EB2 NIW petition.

If the EB2 NIW petitioner proves that he holds an advanced degree or equivalent, or has exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare, the USCIS may grant an EB2 NIW of the Labor Certification, which allows for selfpetitioning by the foreign national.

Under the new framework in Matter of Dhanasar, USCIS may grant an EB2 NIW (National Interest Waiver) if the petitioner establishes the following:

The foreign national’s proposed endeavor has both substantial merit and national importance;
The foreign national is well positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a Labor Certification.

If these three elements are satisfied, USCIS may approve the EB2 NIW (National Interest Waiver) as a matter of discretion.

EB2 NIW Application- General Requirements

The general requirements when an alien applicant submits the EB2 NIW (National Interest Waiver) are:

His or her work should be in an area of “substantial merit and national importance”
The EB2 NIW applicant’s work should benefit national interest
The beneficiary’s work should have had a significant impact in his or her field of study, substantially different from his or her peers who have performed similar work

The EB2 NIW application documents should showcase what the applicant has done that distinguishes him from the rest of his peers.

If granted permanent residence, all EB2 NIW applicants must establish that they will substantially and prospectively benefit the national economy, cultural or educational interest or welfare of the United States. Subsequently, an EB2 NIW applicant will likely be asked to demonstrate that he or she is still continuing to work in the field of expertise as mentioned in the original EB2 NIW application at the time of the green card issuance.

The EB2 NIW (National Interest Waiver) application would have to reveal clearly that the EB2 NIW applicant’s past credentials would reflect and project his future benefits to the U.S. national interest. The EB2 NIW applicant will have to support this with recommendation letters testifying to the EB2 NIW alien’s unique skill, experience, knowledge, or expertise. The USCIS will not only closely examine the recommendation letters, but also analyze the credentials of the letter writers to ensure that they were qualified enough to make such inferences.

A Petition for Alien Worker for an EB2 NIW (National Interest Waiver) must be submitted along with sufficient evidence. Unlike the EB1 Outstanding Professor or Researcher Petition that requires the alien applicant be recognized internationally as outstanding in the academic field, or the EB1 Extraordinary Ability petition that requires the alien applicant have “sustained national or international acclaim in the field of endeavor”, the EB2 NIW petition only requires the applicant to be in an area of “substantial merit and national importance” and that his work should be beneficial to the U.S. national interest.

The Alien Applicant’s Significant Benefit To The U.S. National Interest – Best Supporting Evidence

The EB2 NIW (National Interest Waiver) regulation and NYSDOT case mandatorily requires an EB2 NIW alien applicant to demonstrate exceptional ability for the EB2 immigrant visa category as well as significant contributions in the field, in order to ascertain an alien applicant’s excellence over others in the same field.

The EB2 NIW (National Interest Waiver) petition should include the following substantial supporting evidence:

Achievements Of The Applicant: Tangible substantial contributions, achievements in the field, the critical role played by the EB2 NIW alien applicant in highly significant projects that can indicate the alien’s “track record of success” until the date of application should be included and submitted as evidence.
Specific Job Description: In case the EB2 NIW applicant has a job offer by an U.S. employer, which requires exceptional ability and superior credentials, then a detailed job description which includes the EB2 NIW alien’s job related activities and crucial role in the activities that could benefit the U.S. national interest must be stated in the evidence.
Reference And Recommendation Letters: Reference letters or recommendation letters from experts in the field are mandatory and very significant evidences that can be submitted to establish the EB2 NIW alien applicant’s qualifications for the EB2 NIW (National Interest Waiver) petition. The letters should provide detailed account of the EB2 NIW applicant’s leading roles, and how it significantly impacts the US national interest.

References Or Recommendation Letters For The EB2 NIW Petition

Any successful EB2 NIW (National Interest Waiver) case is supported by strong reference or recommendation letters. Both, the “inner circle” and “outer circle” peers can provide recommendation letters. The inner circle of the EB2 NIW alien applicant refers to those qualified professionals with whom he has directly worked with either in academia or in business. Since they are the most crucial references, they are analyzed the most to eradicate the possibility of a biased referral.

Some basic guidelines while selecting referrals:

Obtaining Supporting Letters From Experts Or Authorities Has More Significance: When individuals recognized as authorities or experts in the field issue recommendation letters, these letters have more significance. The support letter should indicate that these individuals are qualified to judge the EB2 NIW applicant’s credentials.
Obtaining Supporting Letters From Closely Related Or Undistinguished Persons Has Little Significance: Obtaining support letters from known sources, which includes co-workers, supervisors or other employees of the same organization where the EB2 NIW applicant is currently employed, from undistinguished colleagues or former college instructors are given little or hardly any significance as they tend to be subjective.
Obtaining A Recommendation Letter From An Objective Third Party Is Viewed With More Positivity: As USCIS considers objectivity as one of the factors, if letters of support from your professor or employer or organization that is seeking to employ the foreign beneficiary, have substantial knowledge about your accomplishments providing a strong reference, these letters will be viewed with more positivity and considered without being rejected.

The Advantages Of Applying For An EB2 NIW

As the EB2 NIW (National Interest Waiver) allows self-petition without a U.S. employer’s sponsorship and even a job offer, it is the best suited visa category.

The advantages included are:

A Permanent Job Offer Not Required: An EB2 NIW alien applicant can apply for a green card under this category without a the sponsorship of a U.S. employer or even a job offer in United States. He can self petition the EB2 NIW application.
Labor Certification Not Required: Given that the labor process is highly time-consuming, bypassing it gives the EB2 NIW applicant the advantage of time. Especially during US economic downtrend, many employers are reluctant to sponsor a green card application as they may not want to begin a Labor Certification process, without which the applicant cannot obtain a green card.
U.S. Employer’s Sponsorship Not Required: A U.S. employer’s sponsorship is not required for an EB2 NIW petition thereby allowing an alien immigrant to self-petition the EB2 NIW with the USCIS.
A Tie-Up To A Specific Employer Not Required: During the green card application process, the EB2 NIW alien applicant is allowed to change jobs at any time but it is mandatory that he continues in the same field during this time frame.

Applying for a green card through the EB2 NIW category is far advantageous option than Labor Certification. Moreover, the EB2 NIW alien applicant also does not have to comply with some very strict conditions governing the Labor Certification, such as:

Leaving the current employer;

Job loss
Job description or title change
Job location change
Employer out of business
Employer’s merger with other company

Self-Filing A U.S. Green Card Application

There are few immigration categories which allow for self-filing a US green card petition, as long as the applicant meets the required criteria. Two immigrant classifications under which an applicant may selfpetition for a U.S. green card without having a U.S. job offer or a U.S. employer to sponsor them are:

1) Individuals Of Extraordinary Ability In The Sciences, Arts, Education, Business Or Athletics (E11 or EB1A).

The first preference (EB1) employment-based immigration category has three subcategories:

EB1 Extraordinary Ability (EB1A, or EB1EA);
EB1 Outstanding Professor or Researcher (EB1B, or EB1OR); and
EB1 Multinational Executive or Manager (EB1C, or EB1C).

The EB1 Extraordinary Ability category allows for self-petition. Alien applicants with extraordinary ability in business, science, art, education, or athletics are eligible for this category and are recognized for their extraordinary contributions in their respective fields and intend to continue to work in that field in U.S.

2) Individuals Requesting A National Interest Waiver (E21, or EB2 NIW)

The EB2 National Interest Waiver (EB2 NIW, or NIW) is second preference (EB2) employment-based immigration category which also allows for self-petition. This is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

Though this category generally requires a job offer from a U.S. employer and a PERM Labor Certification approved by the U.S. Department of Labor (DOL), U.S. immigration law permits a waiver of the PERM Labor Certification requirement in some cases. When an alien applicant’s contributions for United States are at such a level that the U.S. nation’s interests can be better served by not having the alien applicants undergo the PERM Labor Certification process, US Immigration allows a waiver.

To become a permanent U.S resident while residing outside the United States, a Petition for Alien Worker has to be filed first. Subsequently the alien applicant will have to go through consular processing when the U.S. Citizenship and Immigration Services (USCIS) works in conjunction with the U.S. Department of State and issues an immigrant visa on an approved Petition for Alien Worker.

Similarities and Differences Between An EB1 Extraordinary Ability (EB1A) Petition And An EB2 National Interest Waiver Petition

Similarities

The EB1 Extraordinary Ability and the EB2 National Interest Waiver (NIW) do not require a job offer from a U.S. employer nor do they require a Labor Certification. Hence, both petitions can be self-filed without an U.S. employer as a sponsor.

Differences

But, for the EB2 Exceptional Ability category (not EB2 NIW), the Petition for Alien Worker can be submitted by the U.S. employer only after obtaining the Labor Certification from U.S. Department of Labor.

The regulation requirements for a NIW petition is lower than that for an EB1A petition because to file an EB1A petition for alien with extraordinary ability, an alien applicant has to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability in a field than the “exceptional ability” required for an NIW petition.

For an EB1 Extraordinary Ability application, the alien applicant has to “rise to the very top of the field,” whereas a successful NIW application, this is not a pre-requisite.

Also, for EB1 Extraordinary Ability applicants, the applicants need to fulfill three out of ten criteria or show a major internationally recognized award. Whereas for an EB2 NIW (National Interest Waiver) petition, the alien applicants need to only show that they are in an area of substantial merit and national importance, and that the applicant’s work would benefit U.S. national interest.

Also, the EB2 NIW (National Interest Waiver) petition does not require a job offer. Both, EB2 NIW and EB1A petitions can be submitted at the same time by the alien applicant to increase the chances for approval, provided the applicant can meet the qualification requirements. The EB1 category is more preferred route than the NIW if an alien applicant is from visa retrogressed countries, such as India or China because it takes a much shorter waiting time while filing a Petition to Adjust Status.

Filing EB1 Extraordinary Ability And EB2 National Interest Waiver Petitions Simultaneously

Since the requirements for the EB1 Extraordinary Ability and the EB2 NIW (National Interest Waiver) immigrant visa categories are different, there are significant differences between the application documents and their preparation of the petitions. But the alien applicant can file the petition himself for both EB1A and EB2 NIW petitions without the need of an U.S. employer as a sponsor.

Immigration law does not prohibit multiple filings of immigrant visa applications. The applicant can file either an EB1A and an EB2 NIW petition at the same time, or the EB1B and an EB2 NIW petition at the same time. Since this helps increase chances of approval, many applicants file two Petitions for Alien Worker concurrently in EB1A and NIW or EB1B and NIW.

The applicant can file EB1A and NIW petitions concurrently either by himself or through an employer, with the required application fee and supporting documents for each immigrant visa category. The applicant, must however, pay attention not to check multiple categories on each Petition for Alien Worker.

EB2 NIW (National Interest Waiver) Is An Option If The Applicant Does Not Qualify For An EB1 Alien Of Extraordinary Ability Or EB1 Outstanding Researcher/Professor Petition

The EB2 National Interest Waiver (NIW) petition should be considered if the applicant wants to file an immigrant visa application under the EB2 category but feels that he or she may not qualify for an EB1 Alien of Extraordinary Ability or EB1 Outstanding Researcher or Professor.

As immigrant visas are open for everyone in the EB1 categories and the EB1A also allows self petition without a U.S. employer’s sponsorship and a job offer, the EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are more sought after immigration categories for many alien applicants.

While an EB1 Outstanding Researcher or Professor requires a “permanent” research or teaching job offer from a U.S. employer, the EB1 Extraordinary Ability category has a higher standard which requires the alien applicant to “rise to the very top of the field.”

The EB2 NIW (National Interest Waiver )category is a better option for many of those alien applicants who lack academic achievements, the pre-requisite for EB1 applications. With the EB2 NIW only requiring “exceptional ability”, the regulation standards are comparatively lower than those required for the EB1A and EB1B categories.

EB2 National Interest Waiver - Advantages Over EB2 Through PERM Labor Certification

There are two independent steps to get a U.S. green card under the EB2 NIW (National Interest Waiver) category.

File USCIS Petition for Alien Worker to verify the applicant’s employment in the United States has the required national interest to waive the PERM Labor Certification.
Petition to Adjust Status has to be filed after EB2 NIW based Petition for Alien Worker is approved, to receive your green card. The EB2 NIW (National Interest Waiver) application is preferred over the EB2 based PERM Labor Certification for various reasons.

Without the consent or knowledge of the employer, or the employer’s sponsorship, the applicant can file/self-petition a green card by themselves.
EB2 National Interest Waiver regulation requirements are easier than those for EB1 Alien of Extraordinary Ability (EB1A)
The Labor Certification process which is highly time-consuming can be bypassed with the EB2 NIW (National Interest Waiver)

EB2 NIW Petition For A J1 Visa Holder Subjected To The Two Year Home Country Residency Requirement

A J1 visa holder who is subjected to the two year home country residency requirement can file the EB2 NIW based Petition for Alien Worker in the current status for an immigrant visa, and get the J1 waiver later. A J1 waiver is not needed before filing the Petition for Alien Worker. However, adjusting the status from J-1 to U.S. permanent residency under the two year home country residency requirement is also not allowed.

The applicant is still subject to the two year home country residency requirement after the EB2 NIW based Petition for Alien Worker approval and has to get the J1 waiver before filing the Petition to Adjust Status to adjust the status to that of a permanent U.S. resident.

Post EB2 NIW Based Petition For Alien Worker Approval, Apply For Adjustment Of Status Using A Petition to Adjust Status

The form that needs to be filed to get a green card after the application for immigration based on EB2 NIW (National Interest Waiver) is approved is the USCIS application Petition to Adjust Status. Photos, letter of employment, affidavit of support, physical examination record, etc. have to be attached when filing this form.

Depending on the date when your Petition for Alien Worker application is filed, the immigrant visa’s “priority date” is established. Other than aliens from China and India, the immigrant visa’s priority date for EB2 NIW application is stated as “current”

Hence, if the applicant is not from China or India, the NIW based Petition for Alien Worker application can be filed along with a Petition to Adjust Status application concurrently. Rules on status adjustment has become more restricted with various changes in immigration regulations. Visa records of the applicant and his or her family members have to be provided to show continuous lawful status since the entry into the U.S. For those people whose status expired prior to their application for immigration was approved, this could be a serious problem.

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