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.

What are the requirements for the EB-2 NIW and EB-1A?

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. Your proposed endeavor has both substantial merit and national importance;

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

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

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.

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?

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 at the same time. In addition to establishing a priority date, having an approved NIW 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 is not tied to a specific employer. Additionally, in many instances the NIW 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 I need to have a PhD to be eligible for an EB-1A?

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

Do I need to have a PhD to be eligible for an EB-2 NIW?

There is no PhD requirement for EB-2 NIW. Rather, there is an “advanced degree” requirement, meaning you must hold a U.S. master’s (or foreign equivalent) or a U.S. bachelor’s (or foreign equivalent) and five years of post-degree experience.

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.

Want to know if you are eligible for an EB-2 NIW or EB-1A? Email us at kevin@yehimmigration.com for an assessment.