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                     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. Since the
Labor Certification is a standardized process that gives precedence to minimally qualified US workers,
sidestepping this process is an important benefit. The Labor Certification process excludes many
qualified foreign nationals because US workers with minimum qualifications can be found in the 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 a close look at your own credentials.

The Starting Point:

First and foremost, it’s 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 won’t have amassed the necessary achievements for the Eb-1A or Eb-1B
classification. The standards for both of these classifications are set high, and require specific types of
hard evidence to meet the standards. But there are exceptions. From time to time, we find that the
credentials of some fresh Ph.D. graduates make a reasonably approval EB-1A or Eb-1B case. 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 can 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 applicant 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 applicants 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 application is filed. Even if an immigrant petition is approved, an applicant
cannot file for I-485 Adjustment of Status (the final step in the Green Card process), until their 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 for 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 applicant 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 applicant 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.

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 applicant’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, In Re New York State Department of Transportation, and
are as follows:

•        The applicant must seek employment in an area of substantial intrinsic merit
•        The proposed benefit must be national in scope
•        The national interest would be adversely affected if a labor certification were required

Unlike the standards laid out for the 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 NIW petition. When it comes to evidence, our NIW clients generally have published their
work in peer-reviewed journals and at scientific conferences. But 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 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. But 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 since 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 email your full resume of CV to
evaluation@niwus.com. The information sent to us through this email address is for the purpose of
evaluation only, and we hold all information we receive strictly confidential.