EB-1A and EB-2 NIW: Expert Tips for Your Green Card

Navigating U.S. Immigration: Advice for Tech Professionals

This is another installment of “Dear Sophie,” a column dedicated to addressing immigration questions relevant to those working within the technology sector.

Sophie Alcorn, a Silicon Valley-based immigration lawyer, emphasizes the importance of these inquiries. She states that these questions contribute to a broader understanding of immigration processes, empowering individuals globally to pursue opportunities across borders.

Access to weekly “Dear Sophie” columns is available to Extra Crunch members. A 50% discount is offered on one- or two-year subscriptions using the promo code ALCORN.

Question: Self-Sponsoring a Green Card While on H-1B

Dear Sophie,

I currently hold an H-1B visa and am employed in the United States. I am exploring the possibility of self-sponsoring for a green card. My primary concern is avoiding complete reliance on my employer. I desire the flexibility to change jobs or even launch my own startup.

I have been researching the EB-1A and EB-2 NIW (National Interest Waiver) green card options. While I am uncertain if I meet the criteria for an EB-1A, I recognize that my country of origin, India, may result in a significantly longer wait time for the EB-2 NIW. Could you offer some guidance on how to best proceed?

— Inventive from India

Sophie’s Response

Dear Inventive,

Thank you for reaching out with your question. I suggest listening to my podcast episode, where I discuss current tech immigration updates and provide a detailed analysis of the EB-1A green card – designed for individuals demonstrating extraordinary ability – and the EB-2 NIW green card.

These are the primary employment-based green card pathways available for self-sponsorship. I strongly recommend consulting with a seasoned immigration attorney.

An attorney can thoroughly evaluate your skills and achievements to accurately assess your potential for success with each green card option. Initial consultations allow us to provide tailored advice, as these pathways are highly individualized.

Certain individuals may benefit from maximizing their chances. This includes those born in countries with substantial backlogs, such as India or China.

It also applies to individuals whose qualifications might be borderline for the EB-1A. In some instances, clients choose to concurrently file both the EB-1A and EB-2 NIW petitions to enhance their prospects and minimize potential delays.

The EB-1A green card carries the highest priority, and the qualifying standards are more rigorous than those for the EB-2 NIW. Consequently, the EB-1A typically processes more quickly.

As of the August 2021 Visa Bulletin, there was no waiting period for the EB-1A green card, regardless of the applicant’s country of birth. However, for the EB-2 NIW, only individuals born in India with a priority date of June 1, 2011, or earlier were eligible to proceed.

It’s important to note that the Visa Bulletin is subject to monthly fluctuations. Furthermore, the EB-1A is currently eligible for premium processing of the I-140 petition.

While there is discussion about extending premium processing to the EB-2 NIW in the future, it is not currently available for EB-2 NIW I-140 petitions.

Strategies to Expedite the EB-2 NIW Process

To potentially circumvent the EB-2 NIW wait times, explore options like cross-chargeability or reusing a previously established priority date.

If you are married to someone born in a country other than India, you may be able to expedite your EB-2 NIW processing by “charging” your green card application to your spouse’s country of origin – a process known as cross-chargeability.

This requires submitting your adjustment of status applications, the final step in obtaining a green card, jointly with your spouse. Additionally, if you were previously sponsored for an EB-1, EB-2, or EB-3 I-140 petition by an employer, you might be able to leverage your original priority date with a new I-140 submission.

EB-1A and EB-2 NIW: A Comparison

The EB-1A and EB-2 National Interest Waiver (NIW) petitions share certain similarities in their eligibility criteria. Furthermore, supporting documentation, including expert recommendation letters, can often be leveraged for both applications with appropriate preparation.

EB-1A Eligibility Requirements

Applicants for the EB-1A visa must demonstrate fulfillment of at least three of the following criteria to qualify.

• Receipt of a prestigious, nationally or internationally recognized prize or award.
• Membership in exclusive organizations, typically those requiring invitation.
• Significant coverage in professional, trade, or major media outlets.
• Service as a judge or evaluator of the work of others.
• Demonstrated substantial contributions to fields like science, education, arts, business, or athletics.
• Publication of scholarly articles.
• Display or showcasing of original work.
• A prominent leadership role within a distinguished organization.
• Receipt of a notably high salary or compensation.
• Proven commercial success in your endeavor.

EB-2 NIW Eligibility Requirements

The EB-2 NIW requires applicants to establish both an advanced degree or exceptional ability, and that their work is in the U.S. national interest. To satisfy the advanced degree or exceptional ability requirement, one must possess either:

• A master's degree or a higher academic credential.
• A bachelor's degree coupled with a minimum of five years of progressive experience in the relevant field.
• Alternatively, fulfillment of any three of the following: ten years of experience, professional licensure, a high salary, exclusive membership in professional organizations, or documented exceptional abilities and achievements.

Demonstrating national interest necessitates showing that your work and expertise:

• Possess significant merit and national importance – for instance, research related to public health crises like COVID-19.
• Are poised to substantially advance your specific field of endeavor.
• Will provide tangible benefits to the United States, such as job creation or significant economic contributions.

It’s important to note that the standard of proof is not one of absolute certainty. Applicants need only demonstrate that it is more likely than not that their work is extraordinary, exceptional, or serves the national interest.

Exploring Alternative Career Paths

Should you desire a change in employment, several avenues are available. These include transferring your H-1B visa to a different employer or initiating your own venture. Alternatively, pursuing a different visa category, like the O-1A visa for individuals with extraordinary abilities, can allow you to continue your green card application process.

For a detailed comparison of the H-1B, O-1A visas, and the EB-1A green card, refer to a previous "Dear Sophie" article outlining the advantages and disadvantages of each option.

Wishing You Success

We extend our best wishes for a swift green card approval and the attainment of your ideal career position!

Sincerely,

Sophie

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The information presented in “Dear Sophie” is intended for general knowledge and should not be considered legal counsel.

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For a comprehensive understanding of the limitations of “Dear Sophie,” please review our complete disclaimer. Direct inquiries can be addressed to Sophie at Alcorn Immigration Law.

Immigration Law Podcast

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