What are the EB-2 NIW and EB-1A visas?

The EB-2 NIW and EB-1A are a specific category of the I-140 immigrant petition and the first of two steps towards receiving an employment-based green card. If your EB-2 NIW or EB-1A is approved, you can file a green card application (i.e., adjust status) when your priority date is current under the visa bulletin.

How do I qualify for an EB-2 NIW?

To be eligible for an EB-2 NIW, you must submit evidence that you have an advanced degree (or possess exceptional ability) and satisfy the three-pronged test from Matter of Dhanasar:

1. Prong One: Your proposed endeavor has both substantial merit and national importance;

2. Prong Two: You are well positioned to advance the proposed endeavor; and

3. Prong Three: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Do I need a Masters or PhD degree to qualify for an EB-2 NIW?

Not necessarily. To satisfy the “advanced degree” requirement, you must hold either:

1. A U.S. master’s degree (or foreign equivalent); or

2. A U.S. bachelor’s degree (or foreign equivalent) and at least five years of post-degree experience.

However, if you do not meet the advanced degree requirement, you can still apply for the NIW if you possess “exceptional ability,” which is shown by submitting at least three of the following six types of evidence:

1. An official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.

2. Evidence in the form of letter(s) from current or former employer(s) showing that you have at least 10 years of full-time experience in the occupation sought;

3. A license to practice the profession or certification for a particular profession or occupation;

4. Evidence that you have commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that you have commanded a salary or remuneration for services that is indicative of your claimed exceptional ability relative to others working in the field);

5. Evidence of membership in professional associations; and

6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

How do I qualify for for an EB-1A?

To be eligible for an EB-1A, you must submit evidence that you satisfy at least three of the following ten criteria:

1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence.

2. Evidence of your membership in associations in the field which demand outstanding achievement of their members.

3. Evidence of published material about you in professional or major trade publications or other major media.

4. Evidence that you have been asked to judge the work of others, either individually or on a panel.

5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.

6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media.

7. Evidence that your work has been displayed at artistic exhibitions or showcases.

8. Evidence of your performance in a leading or critical role in distinguished organizations.

9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field.

10. Evidence of your commercial successes in the performing arts.

Is there also a degree requirement for the EB-1A?

No, there is no degree requirement for the EB-1A.

I am not a researcher, can I still qualify for an EB-2 NIW or EB-1A?

Yes, you may still qualify. It is a common myth that publications and citations are required for a successful NIW or EB-1A. While academic recognition can certainly strengthen a case, many successful NIW or EB-1A petitions are grounded in industry achievements. A professional that has patented a technology adopted in manufacturing or that has created a new framework that will be applied across the industry may satisfy the Dhanasar framework or the EB-1A criteria without an academic research profile. Indeed, for NIWs, USCIS has expressly noted that endeavors related to business can qualify as nationally important, even laying out specific evidentiary considerations for entrepreneurs in the Policy Manual.

For those without a research background, it is crucial to demonstrate that your work has measurable effects that extend beyond an employer’s bottom line and align with broader U.S. needs. Professionals in fields like construction, energy, finance, or healthcare administration may not publish academic articles, but can present evidence of leadership roles in projects that have industry-wide impact.

What will my priority date be when I file an EB-2 NIW or EB-1A?

Your priority date is the date that USCIS receives the petition. A priority date from a previously approved I-140 can be retained when filing an EB-2 NIW or EB-1A.

Does my employer need to sponsor my EB-2 NIW or EB-1A?

No, the EB-2 NIW and EB-1A immigrant visas do not require employer sponsorship — they can be self-petitioned. They also do not require that you have an offer of employment. You can be unemployed and still apply for an EB-2 NIW or EB-1A.

My employer is doing the PERM labor certification process for me. Should I still consider an EB-2 NIW or EB-1A?

Yes, the PERM process is lengthy, often taking close to two years, and not always successful. You may want to consider pursuing a self-petitioned NIW or EB-1A at the same time. In addition to establishing a priority date, having an approved NIW or EB-1A confers other benefits. If you have an approved NIW and are laid off or want to change jobs, you may not need to restart the I-140 process — the NIW and EB-1A are not tied to a specific employer. Additionally, in many instances the NIW and EB-1A process is faster than PERM, meaning you may have an I-140 approval sooner and, thus, be able to extend your H-1B beyond the six-year limit or file an H-4 work authorization application for your spouse.

Do you want to know if you are eligible for an O-1, EB-2 NIW or EB-1A? Send an email to kevin@yehimmigration.com for a free assessment.