NIW to EB-1A: A Strategic Path for Indian Professionals

For Indian professionals seeking permanent residency in the United States, strategic planning can help reduce the years-long wait for a Green Card. One such strategy is filing for an EB-2 National Interest Waiver (NIW) to establish an earlier priority date, and then using that priority date later when filing an EB-1A petition. 

This strategic approach involves filing an EB-2 NIW petition now to secure a priority date, while simultaneously building your qualifications for an EB-1A petition at a later point in your career. If your professional profile is strong, but perhaps not strong enough for EB-1A approval now, filing for EB-2 NIW can be a smart long-term strategy that could potentially save you years of waiting. 

Priority Dates and Their Critical Importance 

A priority date is essentially your “place in line” for a green card. For most employment-based petitions requiring labor certification (PERM), your priority date is the date when the Department of Labor accepts your PERM application. For petitions that don’t require labor certification, such as EB-1 categories and EB-2 NIW, your priority date is the date USCIS receives your I-140 petition. 

What many don’t realize is that priority dates can be transferred between certain immigrant visa categories. According to USCIS regulations, if you have an approved I-140 petition in one employment-based category, you can retain that priority date when filing a petition in another employment-based category. 

The EB-2 NIW Advantage 

The EB-2 NIW allows individuals with exceptional abilities or advanced degrees to bypass the labor certification process if their work benefits the United States. While still requiring strong qualifications, the NIW is generally more accessible than the EB-1A category, making it attainable for many professionals who may not yet qualify for EB-1A. 

The strategic advantage of filing for EB-2 NIW now is clear when considering the current visa bulletin situation. For Indian nationals, the EB-2 category currently has a backlog stretching over a decade, while the EB-1A category typically has a wait time of only 2-3 years. This difference creates a significant opportunity to secure a priority date through NIW while building your qualifications for EB-1A. 

EB-2 NIW as a Long-Term Strategy for Permanent Residency 

Here’s how the strategy works: 

1. File an EB-2 NIW petition now to secure your priority date: This establishes your priority date, securing your place in line even if that line is very long. Once your EB-2 NIW petition is filed, you’ve established your position in the green card queue with a priority date that can later be transferred. 
2. Strategically develop your career for 3-4 years: During the inevitable waiting period, focus on building evidence of national or international acclaim and recognition as being at the top of your field:
   • Increase the impact and recognition of your work 
   • Build substantial citation records for your publications 
   • Gain recognition from leaders in your field 
   • Secure media coverage of your contributions 
   • Demonstrate how your work has influenced your field 
   • Build evidence that you are among the small percentage at the top of your profession 
3. File an EB-1A petition when ready: When your credentials have improved such that you satisfy at least three of the required criteria, file your EB-1A petition. 
4. Request priority date retention: When filing your EB-1A petition, explicitly request to retain the priority date from your previously approved EB-2 NIW petition. 

This strategy takes advantage of the transferability of priority dates between employment-based categories, as well as the significantly faster movement of the EB-1 category compared to EB-2 for Indian nationals. 

Here’s an example of how this strategy works: An Indian professional with a master’s degree in Engineering files for EB-2 NIW in 2025 and gets approved with a June 2025 priority date. Over the next three years, they build sufficient evidence of national acclaim and recognition as being at the top of their field. By 2028, the professional has built a strong EB-1A case and files their petition, requesting to retain the June 2025 priority date. Instead of waiting potentially a decade or more for the EB-2 priority date to become current, they might only need to wait two to three years for the EB-1A priority date to become current. 

EB-2 NIW vs. EB-1A: Meeting the Requirements 

Many professionals who qualify for EB-2 NIW may already meet many of the initial criteria for EB-1A. The key difference isn’t just about meeting three of the 10 EB-1A criteria – it’s about the final merits determination. 

This final merits determination is where most NIW-qualified professionals fall short for EB-1A. At this stage, USCIS evaluates whether the evidence presented demonstrates that the applicant has risen to the top of their field. To succeed, you must: 

• Demonstrate that you are among a small percentage at the very top of your field  
• Show sustained national or international acclaim  
• Prove your achievements have been recognized in the field of expertise 

While you might meet three of the 10 criteria for EB-1A, USCIS will still evaluate whether you truly stand at the top of your field with sustained acclaim. This is a significantly higher standard than NIW and requires deliberate career development over time. 

The strategy works because it gives professionals time to build this evidence of being at the top of their field while already having secured a priority date through NIW. 

H-1B Extensions: Another Benefit of this Strategy 

Another benefit of this strategy for many Indian professionals is related to H-1B visa extensions. Many Indian nationals pursuing employment-based green cards are currently on H-1B visas, which normally have a six-year limit. 

However, under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), having an approved I-140 petition allows H-1B visa holders to extend their status indefinitely beyond the normal six-year limit while waiting for their priority date to become current. 

By filing for EB-2 NIW and securing an I-140 approval, Indian professionals not only establish an earlier priority date that can later be transferred to EB-1A, but also can extend their H-1B status indefinitely. 

Accelerate Your Journey to a Green Card 

For Indian professionals facing lengthy green card backlogs, the strategic use of EB-2 NIW to secure an earlier priority date represents a noteworthy opportunity to potentially save decades of waiting time. By understanding how priority dates work and can be transferred, you can leverage the existing immigration system to your advantage. 

This approach offers multiple benefits: establishing an earlier priority date, enabling indefinite H-1B extensions through the approved I-140, and potentially reducing the wait time from decades to just a few years by transferring that priority date to a later EB-1A petition. 

This strategy requires planning and patience. It involves establishing your place in line with an EB-2 NIW petition now, while deliberately building your career to demonstrate that you are at the top of your field with sustained acclaim. With guidance from an experienced immigration attorney, you can significantly accelerate your path to permanent residency.