For the majority of foreign nationals, there are two main options for seeking a green card: family-based and employment-based. For individuals that do not have a U.S. citizen or Legal Permanent Resident immediate family member, family-based options are either impossible or come with a years-long wait.
Employment-based options can be further categorized into two options: employer-sponsored and non-employer-sponsored (also referred to as self-petitions). Employer-sponsored options are the more common of the two; they include Labor Certification, which is applicable for all jobs, and Outstanding Researcher/Professor (EB-1B), which is applicable for tenure track or permanent faculty only. The only two employment-based immigrant visa categories in which a foreign national may self-petition are National Interest Waiver (EB-2) and Extraordinary Ability (EB-1).
Many employers have limits as to who and when they will sponsor for permanent residence. They may only provide sponsorship for certain positions, or employees who will be in a position for more than a specified length of time. Alternatively, an employer may have a “waiting period” in which employees are not eligible for sponsorship until they have been with the company or institution for a certain length of time on a temporary visa.
Positions that are temporary by nature (such as postdocs, medical residents/fellows, or visiting faculty) or part-time will not be appropriate for employer-sponsored categories.
If you are investigating permanent residence categories that do not require employer sponsorship, note that your opportunities and qualifications for these categories will improve as your career moves forward. Your CV will get stronger, and as you progress to higher level positions and employer may sponsor (and possibly pay for) your permanent residence process. Therefore, it is not only important to consider whether you qualify for a self-petition, but whether it is worth trying now.
If you do start now, it will make it possible to obtain work authorization when you have an I-485 permanent residence application pending, which makes it easier to seek new employment. Additionally, you will be on a path to US citizenship sooner, your spouse will be able to work, and you may be able to travel without getting a new visa stamp in your passport. In addition, when you are a legal permanent resident (LPR), your children will be eligible for financial aid in college, and you may be eligible to apply for more kinds of US government grants for your work.
Extraordinary Ability (EB-1A)
Extraordinary Ability is the highest-level immigration category, reserved for individuals who can demonstrate that they are among the top few percent of experts in their fields, in their home country or internationally. There are no limits to the fields that may be included in this category. EB1-1 is used for athletes and coaches, business and consulting professionals, artists and performers, and researchers in all academic disciplines.
The EB1-1 category requires no employer sponsorship (though such a petition may be sponsored by an employer) and does not require a Labor Certification to show that there are no minimally qualified U.S. workers for the job. This category does require reference letters from peers in the field (including independent reference letters) and documentary evidence proving that the applicant is among the top few percent in the field and has achieved sustained national or international acclaim.
If an individual has received a Nobel Prize or similar very high-level award for achievement in the field, no further evidence is necessary. However, most individuals must submit more extensive evidence demonstrating that he or she meets at least three of the criteria outlined in the regulations for this category:
- Receipt of prizes or awards for excellence in the field: These must be prizes or awards for which an individual was selected from among his or her peers. Student awards do not hold any weight in this category.
- Membership in associations that require outstanding achievements of their members: Professional memberships that require only a degree in the field and payment of dues do not hold any weight in this category. Memberships that are selective, such as the National Academy of Sciences, are relevant to this category.
- Published materials about the individual in professional publications or major media
- Participation as a judge of the work of others: Such as requests to peer-review articles for a journal, or to serve on a grant panel.
- Original contributions of major significance to the field.
- Authorship of scholarly articles in the field
- Display of work at exhibitions/showcases
- Serving a leading/critical role for distinguished organizations
- Commanding a high salary (relative to others in the field)
- Commercial success
In addition to meeting three of the criteria above, individuals must be able to show the totality of evidence submitted indicates that they are at the top of their field. This can be shown in a wide variety of ways, such as having a high citation count, being published in leading journals in the field, and evidence that others in the field are utilizing the individual’s work.
Please keep in mind that each case is different – many talented young applicants are not quite ready to file in this category, but may have other options. We also regularly encounter experienced and accomplished individuals who do not realize that they may qualify for this category. If you are seriously considering this category, please look to our EB-1A FAQ. We also encourage you to update your CV or resume, including the details of at least six references (including at least three references who have not worked or collaborated with you), and send it to us using the contact page. We will be able to help you consider your eligibility.
National Interest Waiver (NIW or EB-2)
The National Interest Waiver is similar to the EB1-1 in that it does not require employer sponsorship or a Labor Certification. Many of the same letters and evidence as described above may be used to show that an applicant meets the standard for a NIW. The criteria for this category may be considered more restrictive, yet less specific:
- Applicant’s proposed endeavor must be of “substantial merit” and “national importance”
- The applicant must be well positioned to advance the proposed endeavor
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category
“Substantial merit” includes the wide range of fields such as business, entrepreneurialism, science, technology, culture, health, and education.
“National importance” criterion is meant to exclude individuals who are doing important work that has a local impact, such as teachers or social workers. Applicant’s proposed work must have potential prospective impact on the field or industry in a broad sense and go beyond creating value for one’s institution, clients or customers. Entrepreneurial project can meet this criterion if it has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in the economically depressed area.
The second prong is not easy to meet. To determine whether applicant is well-positioned to advance the proposed endeavor, USCIS will consider factors including, but not limited to: individual’s education, skills, knowledge and record of success; a model or plan for future activities; progress toward achieving the endeavor; and the interest of potential customers, users, investors. The USCIS mostly focuses on prior results as indication of the future probability of success. For researchers, USCIS looks whether their prior work served as “impetus for the progress in the field” or generated “substantial positive discourse in the broader academic community”. To satisfy this prong, applicant can show that outside researchers are building upon the applicant’s accomplishments, for example, or that a discovery has been widely implemented, licensed for use by industry, etc.
Finally, to demine if the applicant meets the third prong, USCIS takes into account the following factors:
– whether in light of the nature of applicant’s qualifications or the proposed endeavor, it would be impractical to secure a job offer or obtain labor certification;
– whether the U.S. would still benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available;
– whether the national interest of the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process.
EB1-A vs. NIW
It is common to apply for permanent residence in both categories. There is no regulation that limits the number of different categories in which an applicant may apply. Some applicants will fit well into both categories, but many will find that one of the other is the stronger application. The filing fee is now $700 per petition – we often recommend starting work on a case, and then deciding whether to use EB1-1 or NIW later after we get to know your case better. Each one of these petitions is different, and it usually takes at least a few weeks for us to give a good assessment of the strengths and weaknesses of applying in each category.
There are several points to consider.
A. The USCIS allows premium processing of EB1-1 I-140 petitions, but has not yet implemented premium processing of NIW petitions. Premium processing requires filing an additional $2,500 fee, in return the USCIS will make an initial decision on the application in 15 days. Processing times in both categories vary widely, the latest processing time reports are found on the USCIS website. In general, processing over the last several years has been faster in the EB1-1 category than in the NIW category.
B. The EB1-1 category is first preference, while the NIW category is second preference (the same category as Labor Certifications requiring advanced degrees or extensive experience.) The first preference category has historically retrogressed only in extreme circumstances, while the second preference category is more commonly backlogged. Information about the backlogs for visa numbers can be found in the Visa Bulletin, which is published monthly by the Department of State.
C. The EB1-1 category requires showing that the applicant meets three of the 10 criteria, while the NIW does not have such a structured requirement. The NIW requires showing that the applicant has had a demonstrable impact on the field. For many applicants, their qualifications and evidence will more easily fit one or the other of these requirements.
D. In the EB-1-1 category, an applicant may show that he or she has achieved the level of “national acclaim” in his or her home country – if you are from a relatively small country, that may be easier. It is not required that the applicant have national acclaim in the U.S., or in more than one country. In the NIW category, an applicant must show that his or her work has benefit to the United States. The NIW does not specifically require a demonstration of national acclaim, only that the applicant’s work has had an impact.
Alternatives to Employment-Based Permanent Residence
The principal alternatives to categories that are based on employment or field of expertise are family-based, political asylum, and special programs of Congress.
Family-based immigrant categories are divided into several levels. The top level, immediate relatives, includes spouses, parents (of children who are at least 21 years of age) or children (under age 21) of US citizens. There are long backlogs for the lower levels, including spouses and children of Legal Permanent Residents, married children of US citizens, and brothers/sisters of US citizens. Information about the backlogs for visa numbers can be found in the Visa Bulletin, which is published monthly by the Department of State.
Political asylum is a category that is available to individuals who are afraid to return home due to persecution based on race, religion, nationality, social group or political opinion. This category involves an initial application followed by an in-person interview with a USCIS examiner. If asylum is granted, the individual is given a permanent status, but must wait one year before applying for the green card.
The most common special program of Congress is the Diversity Visa Lottery. This is a program run by the Department of State that makes 50,000 green cards available to individuals from countries that have low rates of immigration to the U.S. The lottery generally runs from October to December, and instructions are posted online. It is a lottery, so the chances of winning are low – but if you are from a country that qualifies (or your spouse is), we do recommend trying. We have clients who win every year.
Don’t Forget About Your Spouse
If an individual qualifies for permanent residence, his or her spouse and children may obtain their green cards on the same basis. Therefore a married couple should consider all possible options for both individuals, and determine the most direct route to a green card for all. There are many categories not discussed in this article that may be options for your spouse, including a special category for nurses and physical therapists, multi-national managers, investors, Special Handling for college teachers, and PERM Labor Certification.
It is important that an individual who wishes to apply for permanent residence in the United States consider all possible options. It is equally important to plan ahead, understanding any time limitations of temporary visas and allowing for the inevitable delays of the green card process.
There has been a lot of talk in the news about immigration this year. Although much of it is about illegal workers, all of the bills in Congress address high skilled workers also. We do hope that some new laws will be passed in the next year to add more green cards and temporary work visas for high skilled workers.