EB-1 and NIW

iStock_000015845633SmallHighly skilled and acclaimed professors and researchers as well as researchers whose work is deemed to be in the U.S. national interest can apply for the green card based upon their achievements without first having to compete with the U.S. labor market. National Interest Waiver (NIW) and Extraordinary Ability individuals can self-petition without an employer.

Regarding the EB-1, USCIS is now firmly committed to continuing to apply a two-part analysis to all cases based upon the Ninth Circuit Case, Kazarian. The two-part analysis requires that the individual not only demonstrate that he or she qualifies by meeting the requisite number of evidentiary criteria [3 for EB-1(A); 2 for EB-1(B)], but in addition, that the individual demonstrate that he or she is extraordinary or outstanding based on the “totality of the circumstances”. This second prong of the analysis is not defined by statute or regulation and is highly subjective. In our experience, USCIS is using this final “merits determination” as a way to limit the number of qualified EB-1 applicants.

In light of the current state of EB-1 adjudications, we are urging our clients to consider very carefully what they define as their academic field. Extraordinary ability requires a showing that the individual has risen to the very top of his or her field; Outstanding Professors or Researchers must demonstrate international acclaim. If the individual can meet the required 3 criteria of EB-1(A) it might make sense to choose that pathway over EB-1(B) despite institutional sponsorship. EB-1(A) appears to have more flexibility.

The National Interest Waiver (NIW), which is an EB-2 green card pathway, is often preferable for individuals who are not from India or China; who have advanced degrees or exceptional abilities; and whose work is deemed to be in the U.S. national interest.

Many researchers and academics who choose to self-petition for the green card based on their research accomplishments are often confused about which path to take between either the extraordinary ability (EB-1) category or national interest waiver (EB-2). Our rule of thumb is as follows: If your achievements are enough to put you at the very top of your field, and your evidence is sufficient to satisfy three of the categories for researchers, then EB-1 makes sense.

However, and what is usually the case, if the research itself is geared towards health, education, economic growth and the environment, and if your research achievements are very good but may not yet have reached the status of being at the very top of your field, then NIW is probably the best path to follow.

You can read more about NIW and EB-1 green cards here. In addition, we regularly post entries on NIW and EB-1 issues at our blogsite – theVisaGeek.