Dear Sophie: Tips on EB-1A and EB-2 NIW?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie,

I’m on an H-1B living and working in the U.S. I want to apply for a green card on my own. I’m concerned about only relying on my current employer and I want to be able to easily change jobs or create a startup. I’ve been looking at the EB-1A and EB-2 NIW.

I’m not sure if I would qualify for an EB-1A, but since I was born in India, I face a much longer wait for an EB-2 NIW. Any tips on how to proceed?

— Inventive from India

Dear Inventive,

Thanks for your question. Take a listen to my podcast episode in which I discuss the latest tech immigration news and delve into the benefits and requirements of the EB-1A green card for individuals of extraordinary ability and the EB-2 NIW (National Interest Waiver) green card, which as you know are the main employment-based green cards for which individuals can self-sponsor.

I recommend you consult an experienced immigration attorney who can evaluate your abilities and accomplishments and assess your prospects for each green card. After an initial consultation with new clients, we’re able to provide a lot more detail to folks on their specific options since these are such individualized pathways.

There are some groups of people who might need every advantage. Those can include folks born in India or China, who might face long green card backlogs. Another such group includes people whose skills and accomplishments might be borderline for an EB-1A green card for extraordinary ability. In some cases — if eligible and to have every opportunity for green card security and to mitigate wait times as much as possible — our clients choose to file both the EB-1A and EB-2 NIW in parallel.

The EB-1A is the highest priority green card and the standard for qualifying is much higher than for the EB-2 NIW. And that means an EB-1A is typically quicker to get, which is particularly the case now: According to the August 2021 Visa Bulletin, there is no wait for an EB-1A green card regardless of country of birth, while only individuals who were born in India and have a priority date of June 1, 2011 or earlier can proceed with their EB-2 NIW petition.

Please remember that the Visa Bulletin fluctuates and changes every month. Also, the EB-1A is currently eligible for premium processing on the I-140. Although there is talk to add this option to the EB-2 NIW one day, premium processing is not available for EB-2 NIW I-140s yet.

To see if you can bypass the EB-2 NIW line, consider cross-chargeability or reusing an old priority date. If you’re married and your spouse was born in a country other than India, you could get an EB-2 NIW more quickly by “charging” your green card to your spouse’s country of birth rather than India — a process called cross-chargeability.

To do this, you and your spouse’s adjustment of status applications, which is the final step in the green card process, must be submitted together. Also, if you were previously sponsored for an EB-1, EB-2 or EB-3 I-140 in the past, perhaps by an employer, you might be eligible to reuse your old priority date on a new I-140 submission.

EB-1A vs. EB-2 NIW

Some of the eligibility requirements for the EB-1A and the EB-2 NIW are similar. What’s more, the recommendation letters from experts in your field and other evidence and documentation might be able to be used for both cases if prepared properly:

For an EB-1A application, you must show that you meet at least three of the following:

• Have received a nationally or internationally recognized prize or award.
• Exclusive membership in organizations (usually, invitation-only memberships).
• Been profiled in a professional or trade publication or major media.
• Have judged the work of others.
• Made major contributions to the fields of science, education, art, business or sports.
• Written articles that have been published.
• Work has been displayed or showcased.
• Play a leading role in a distinguished organization.
• Command a high salary or compensation.
• Have commercial success.

For an EB-2 NIW, you must show that you have an advanced degree or exceptional ability and your work or skills are in the interest of the U.S. To meet the advanced degree or exceptional ability prong, you must have either:

• A master’s or higher degree.
• A bachelor’s degree with at least five years of experience in your field.
• Any three of the following: 10 years of experience in your field, a license, high salary, exclusive membership in professional. organizations, exceptional abilities and achievements.

To meet the national interest prong, you must show that your work and skills:

• Have substantial merit or national importance (For example, COVID-19 research).
• Will advance your field.
• Will benefit the United States, such as creating jobs or substantially contributing to the economy.

Keep in mind that you do not need to prove your case beyond a reasonable doubt. You just need to show that it’s more likely than not that your work is extraordinary, exceptional or in the national interest.

Other options if you want to change jobs now

Keep in mind that you can change jobs now either by transferring your H-1B to another employer or your own startup or getting another visa type, such as an O-1A visa for extraordinary ability, and then continue your green card pursuit. Check out this previous Dear Sophie column on the pros and cons of the H-1B and O-1A visas and the EB-1A green card.

Best wishes to you for quickly obtaining a green card and having the job of your dreams!

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!