Green Card Applications: What Is the Best for You?

Choosing the best option for your green card application can be a daunting task. The various classifications can be confusing, and the standards for each are often vague. This article will break down and analyze three of the employment-based green card options: Alien of Extraordinary Ability (Eb-1A), Outstanding Professor/Researcher (Eb-1B), and National Interest Waiver (NIW).

These three classifications share one important advantage: no Labor Certification is required. Because the Labor Certification is a standardized process that gives precedence to minimally qualified U.S. workers, sidestepping this process is an important benefit. The Labor Certification process excludes many qualified foreign nationals because U.S. workers with minimum qualifications can be found through job market testing.

Which of these three classifications is the best for you? Should you file a combination of more than one classification? The first step is to take a close look at your own credentials.

The Starting Point:

First and foremost, it is important to evaluate your specific situation objectively under the frame of pertinent laws. As a general rule, if you are still in the early stages of your research career, there is a good chance that you will not have amassed the necessary achievements for the Eb-1A or Eb-1B classifications. The standards for both of these classifications are set high and require specific types of hard evidence to meet the standards. However, there are exceptions. From time to time, we find that the credentials of some fresh Ph.D. graduates make a reasonable Eb-1A or Eb-1B case for approval. After meeting the basic requirements, the merit of a case should be specifically evaluated on a case by case basis.

Compared to Eb-1A and Eb-1B, National Interest Waivers are in general a more forgiving option and better suited to researchers at the early stage of their career. Again, to determine eligibility, the first step is an objective evaluation of your credentials. In this process, an experienced lawyer can analyze your situation thoroughly and advise you on the best course of action.

Here we give the pros and cons of each classification, and hopefully you will have a clearer picture of the classification or classifications that will suit you best.

Eb-1A - Alien of Extraordinary Ability:

The legal standards for Eb-1A require the foreign national to fulfill at least 3 of the following criteria:

• Receipt of lesser nationally or internationally recognized prizes or awards
• Membership in associations that require outstanding achievement
• Published reports of the applicant's work in professional or major trade publications
• Evidence of participation on a panel or individually as a judge of the work of others in the same or an allied field
• Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field
• Authorship of scholarly articles in the field
• Display of the alien's work
• Proof of performance in a leading or critical role for organizations or establishments with a distinguished reputation
• Proof of having commanded a high salary
• Commercial success in the performing arts
• Other comparable evidence (*Our attorneys will advise you on what constitutes comparable evidence)

These statutory standards are rigorous, but they are not as clear as they appear to be. In practice, USCIS has its own adjudicatory standards that are not always consistent with the statutes. On many issues, you will need legal advice in determining the validity of some of your evidence. For example, USCIS sets adjudicatory standards for awards presented as evidence in Eb-1A petition. Under the USCIS standards, many awards, although very competitive, do not satisfy the criterion of receipt of lesser nationally or internationally recognized prizes or awards.

For foreign nationals who meet these high standards, Eb-1A is an excellent option. As a First Preference classification, one of its major benefits is that the "priority date" is current for every country. Your priority date is the date your immigrant petition is filed. Even if an immigrant petition is approved, a foreign national cannot file for I-485 Adjustment of Status (the final step in the Green Card process) until his/her priority date is current. Eb-1A petitioners/beneficiaries do not need to worry about their priority date. They may file I-485 and Eb-1A I-140 concurrently or separately.

Another important benefit of Eb-1A is that no employer sponsorship in necessary. You are both petitioner and beneficiary in the petition. The process is under your control, and the approved case belongs to you, not your employer. This gives you more freedom and allows you to change jobs without jeopardizing the application as long as you continue to work in the same field of your expertise.

Eb-1B - Outstanding Professor/Researcher:

The standards for Eb-1B are similar to but less rigorous than those for Eb-1A. The foreign national must:

• Be recognized internationally as outstanding in a specific field
• Possess at least 3 years of experience in teaching or research in the related field
• Seek to enter the United States for a tenured or tenure-track teaching or research position at a university or a comparable research position with a private employer that has at least 3 full-time researchers and documented accomplishments in the research field

The foreign national must also meet at least 2 of the following criteria:

• Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
• Original scientific or scholarly research contributions in the field
• Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
• Published reports of the applicant's work in professional or major trade publications
• Membership in associations that require their members to demonstrate outstanding achievements
• Receipt of major prizes or awards for outstanding achievement
• Other comparable evidence (*Our attorneys will advise you on what constitutes comparable evidence)

Eb-1B is an excellent option for highly qualified professors and researchers in permanent or tenure-track positions. A huge advantage of Eb-1B over Eb-1A is that Eb-1B has lower statutory standards that open this classification to those who are not qualified for Eb-1A. At the same time, the adjudicatory standards for Eb-1B set by USCIS are also significantly lower than those for Eb-1A. You do not need to prove that you are one of the top researchers in the field. Instead, you are only required to prove that you have been recognized internationally as outstanding in the field of your expertise by meeting two of the given criteria.

Like Eb-1A, Eb-1B is also a First Preference classification, and thus the priority date is current. However, Eb-1B requires employer sponsorship, which limits your freedom to change employers in the application process. Eb-1B is therefore an option best suited to those with stable, long-term employment.

NIW - National Interest Waiver:

The National Interest Waiver's standards are the vaguest of the three classifications. The law, INA §203 (b)(2), requires that a waiver of labor certification be granted if the foreign national's work is in the "national interest," but it never defines what "national interest" means in this context. The standards for NIW are taken from an Administrative Appeal decision, Matter of Dhanasar, and are as follows:

• The foreign national's proposed endeavor has both substantial merit and national importance;
• The foreign national is well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Unlike the standards laid out for Eb-1A and Eb-1B, the NIW standards do not require specific evidence. This means that an applicant can make a number of arguments in favor of his/her petition, but our experience has shown that these arguments must be very carefully tailored and organized. Some seemingly sound arguments, such as labor shortage or unavailability of non-immigrant visas, are actually illegitimate in the NIW petition. When it comes to evidence, our NIW clients generally have published their work in peer-reviewed journals and at scientific conferences. However, being published alone is insufficient to warrant an approval of a NIW petition. One important point that needs to be established is that your work has had some influence on the field as a whole, or in other words, the influence of your work has reached beyond the immediate circle of your colleagues. Your influence can be demonstrated with substantive evidence, such as a record of heavy citations to your work or advisory opinion letters submitted by independent references.

Just like in Eb-1A, you are both petitioner and beneficiary in the NIW petition. The process is under your control, and the approved case belongs to you, not your employer. This gives you more freedom and allows you to change jobs without jeopardizing the application as long as you continue to work in the same field of your expertise.

Unlike Eb-1A and Eb-1B that are First Preference classifications, National Interest Waiver is a Second Preference classification, and the priority date is current for all countries except India and China. Applicants who were born in India or China may have to wait for two or even more years to obtain green card after they started the application process. However, considering the less rigorous requirements, the flexible standards, and the freedom to change employers, the advantages of NIW outweigh the disadvantages it has in regard to priority date.

Combining a National Interest Waiver and Eb-1A or Eb-1B:

Some of our qualified clients choose to file both NIW and Eb-1A or Eb-1B at the same time to take advantage of each classification. This is a safer option than filing for an Eb-1A or Eb-1B alone because the NIW serves as a safety net in the event that the Eb-1A or Eb-1B is denied due to more rigorous standards than those set for NIW. In many cases, each option comes with its advantages and disadvantages. Moreover, many factors are involved in the process, and an experienced lawyer can help you balance the major factors and make an informed decision.

Free Evaluation

If you are interested in a free evaluation of your case, please e-mail your full resume or CV to evaluation@niwus.com. The information sent to us through this e-mail address is for the purpose of evaluation only, and we hold all information we receive strictly confidential.