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For individuals interested in living and working in the United States, obtaining permanent residency (a green card) is often the ultimate goal.  With a green card, an immigrant has certain rights that they would not otherwise have.  This includes the ability to live in the U.S. permanently, the ability to work in the U.S., the ability to leave the U.S. on a temporary basis and return to the U.S, and is the first step toward U.S. citizenship.

Getting a green card can be challenging.  However, there are certain paths that a person can take in order to achieve legal permanent residency status.  One of the more popular options is through an employment-based visa — particularly the EB-1A and EB-2 National Interest Waiver (NIW) visas.

These two visas are unique because they do not require a job or a job offer in the United States.  This allows potential immigrants to self-petition, rather than to find an employer to file a petition on their behalf. Understanding the differences between the two types of visas can help you make a better decision on how to proceed.

At Colombo & Hurd, we work with people from around the world who are interested in EB-1 and EB-2 NIW visas. Our team of employment-based visa attorneys will counsel you on the best choice for your situation — and will help you put together a strong petition.

What Is the EB-1 Visa?

The EB-1A visa may also be referred to as the extraordinary ability visa.  Specifically, the EB-1A visa is available for individuals who are at the top of their field (literally the top 1%).  A person with “extraordinary ability” can come to the United States without a job offer, provided that they are able to demonstrate this level of excellence and that they will work in their field of expertise.

An individual who has been publicly recognized in their field for their achievements may qualify for an EB-1A visa.  This concept of “recognition” in incredibly important. You can be good, even great, at your job, but USCIS cares mostly for the recognition of that work.

To prove that they have extraordinary ability, the petitioner may submit evidence that they have achieved sustained national or international acclaim in their field, such as by receipt of an award (like the Nobel Prize).  Alternatively, an individual can prove that they have extraordinary ability by providing other evidence, such as published material about you in a professional or major trade publication, membership in associations that requires outstanding achievement, or proof that they command a particularly high salary compared to others in the field.  If you can demonstrate that you have “extraordinary ability” in this way, that this evidence shows you are truly among the top 1% of people in your field you may qualify for a green card.

Advantages and Disadvantages of the EB-1A Visa

The primary advantage of the EB-1A visa is that it does not require an applicant to have a sponsoring employer or job offer.  This is important, because employer-sponsored visas require a company to go through the PERM labor certification process. This process can be both lengthy and cumbersome, which means that employers may be less willing to petition on behalf of a current or prospective employee, even though the tradeoff is a fairly predictable process.  In addition, the priority date waiting time is usually (but not always) shorter for the EB-1A visa than it is for other visas, such as the EB-2 NIW visa and the EB-3. Self-petitioning through the EB-1A process may result in a much shorter time to obtain permanent residency (and can be very fast to get the form I-140 approved, as the EB-1A category is eligible for premium processing whereas the EB-2 NIW is not).

Unfortunately, the EB-1A visa is incredibly difficult to qualify for under current law.  This visa is reserved for the top percentile of individuals in a given field and USCIS officers have a large amount of discretionary powers over your case.  If you have questions about whether you could be considered someone of “extraordinary ability,” consult with an employment-based visa attorney.

What Is the EB-2 NIW Visa?

The EB-2 NIW visa is available for foreign nationals who are highly skilled or who hold advanced degrees and will also show they have a project or endeavor that will serve the national interests of the United States.  Like the EB-1A visa, individuals may self-petition for an EB-2 NIW visa.  While it still requires individuals to demonstrate a certain level of skill, the threshold for the basic qualifications of the EB-2 NIW visa is much lower than for an EB-1A visa.

To qualify for an EB-2 NIW visa, an applicant must show that they are either a member of professions with an advanced degree (or the equivalent) or a person with exceptional ability in the sciences, arts, medicine, business or athletics.  Petitioners must also demonstrate that they will substantially benefit the national economy to be eligible, which itself is its own three-part test that considers your past education, experience, and achievements, and your future goals in the U.S.

The National Interest Waiver allows applicants to avoid the labor certification process by proving that it is in the best interests of the United States to waive away that process.

Advantages and Disadvantages of the EB-2 NIW Visa

By either the degree requirement or exceptional ability, the standard for the initial, basic qualifications for the EB-2 NIW is lower than it is to petition for an EB-1A visa.  This is seen as one of the main advantages of this type of visa: it is open to a wider range of individuals, rather than just those who are at the very top of their field. Like the EB-1A visa, the EB-2 NIW visa allows petitioners to skip the labor certification process Allowing for a green card application to be filed concurrently with the EB-2 NIW portion.

However, the EB-2 NIW visa is considered a second preference employment visa. Priority dates for this type of visa also depend on an applicant’s country of origin. For this reason, the EB-2 NIW visa process has historically been longer than the process for an EB-1 visa (though in recent months visa backlogs for EB-1 is actually longer than EB-2 for many countries.  In addition, you will still have to provide substantial evidence to prove that your proposed work has “substantial merit” and “national importance,” that you are well-positioned to advance your proposed endeavor, and that it would be beneficial to the U.S. to waive the labor certification process, a highly discretionary process that requires extreme care and competent representation.

Work with an Employment-Based Visa Attorney Today

Both the EB-1A and the EB-2 NIW visas have distinct advantages over employment-based visas that require an applicant to go through the labor certification process.  To be approved for either type of visa, you will need to thoroughly document your qualifications. An experienced employment-based visa attorney can help you put together a successful visa application.

At Colombo & Hurd, we work exclusively in the field of immigration law.  We have helped thousands of people obtain green cards through employment-based and other types of visas.

Contact us today at (407) 478-1111 (Orlando), (813) 444-1114 (Tampa)  or (305) 455-0590 (Miami) to schedule a confidential initial consultation.  You can also reach us online anytime.

Salvatore Picataggio

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