EB-1A and O-1 Extraordinary Ability and EB-2 National Interest Waivers
If you have special achievements, you may qualify for two special categories of employment-based green cards. The EB-1A permanent green card (O-1 temporary work permit) requires you to show “Extraordinary Ability”. The EB-2 National Interest Waiver permanent green card requires a lesser level of “Exceptional Ability”. These categories allow you to file a petition on your own, without needing a US employer, and without needing to undergo the lengthy Labor Certification process (“PERM”).
EB-1A Extraordinary Ability (immigrant)
Your field needs to fit in business, academics, science, education, or sports. Defining your field with precision is an important part of this petition process. You must also show that you have plans to continue in this field after you receive US resident status.
You must prove that you have extraordinary ability, matching the top few percent of your field. You can show this in several ways:
A one-time internationally renowned major prize such as a Nobel prize.
Aside from that demanding level of achievement, you can instead meet three of the following:
A lesser award of national importance;
Publication of articles in respected journals related to the field of ability;
A leading or crucial role in an organization (or its department) which is related to the field of ability;
Coverage of your works and abilities in reputable media;
Payment and compensation for your works and abilities that reflect extraordinary ability;
If you have been selected to serve on a panel judging the work of others in your field;
Original contributions of significant merit to the field of extraordinary ability;
If you have been commercially successful in the performing arts;
If you have been a member in associations that demand outstanding achievement of members;
If your work has featured in public exhibitions.
If you can satisfy the above requirements, the USCIS must also find that your skill places you within the top few percent of your field.
Immigration pointers
This petition is filed on Form I-140, and can be initiated whether the petitioner is inside the US or outside.
The petition can be expedited by “Premium Processing” using Form I-907, which can result in USCIS adjudicating the petition quickly – usually within 15 business days. Without Premium Processing, the adjudication can take a year or more.
Once the I-140 petition is approved and the petitioner is inside the US:
- If the petitioner’s birth nation has a waiting list for the EB-1 category, they must wait until their I-140 date of filing (“Priority Date”) satisfies their nation’s visa/green card waiting list. Once this occurs, the next step is to file the I-485 Adjustment of Status, formally requesting a green card from the USCIS.
- If the petitioner is inside the US, and if their birth nation does not have a waiting list for EB-1 category immigrant visas, then this I-485 Adjustment of Status may be filed at the same time as the I-140 is filed, even if it has not been approved. The properly-filed I-485 allows the petitioner to remain in the US to await adjudication, without accumulating any further Unlawful Presence.
Historically, China- and India-born petitioners face a few years under immigrant visa waiting list. Occasionally, a brief waiting list has applied to all other nations as well.
Once the I-140 petition is approved and the petitioner is outside of the US:
- The US Department of State initiates the “Consular Process” by collecting the visa fee bill, requesting biographical and police clearance documents, and scheduling the visa interview.
- Once the petitioner completes the interview, the consular officer can issue a visa if they determine there are no reasons for denial.
O-1 Extraordinary Ability (nonimmigrant):
This Extraordinary Ability category also has a non-immigrant category: the O-1, which has similar requirements, with the following exceptions:
A US employer must petition for the candidate; O-1s cannot petition for themselves.
Consultation letter: The petitioner must also be recommended for the job position by a peer group or labor organization in the field.
No waiting list: the O-1 nonimmigrant status has no annual quota, so there is no waiting list for the petitioner regardless of their nation of birth.
Approved maximum stay: up to 3 years initially, and may be extended any number of times.
Are you an extraordinary ability individual who has reached the top few percent of your field? Contact us today at intake@bhulaw.com or via Wechat at “BenjaminCJHu” to discuss short-term O-1 nonimmigrant status, or EB-1A long-term immigrant status.
EB-2 Exceptional Ability and National Interest Waiver
You must demonstrate exceptional ability in the field of business, art, or science. This level of ability must be significantly above the average usually found in your field, but it does not need to meet the “top few percentage” requirement of EB-1A.:
To qualify for standard EB-2, one of these must be true:
You must qualify academically, either by possessing a postgraduate-level degree or a baccalaureate-level degree plus five years of work experience in your field; or
You must qualify by exceptional ability, defined as satisfying three of these factors:
- Holding an academic degree in the field of exceptional ability;
- At least 10 years of work experience in your field, substantiated by letters from prior professional colleagues and supervisors;
- Certification or licensing for the field of exceptional ability;
- High compensation for your skills in the field;
- Membership in associations requiring professional ability in your field;
- Recognition by peer professionals, academia, government, and other organizations for your contributions and ability.
The above merely qualifies you for the standard EB-2, which usually requires a U.S. employer to file a petition on your behalf, and which also usually requires a lengthy Labor Certification (PERM) process. However, if you can further satisfy three National Interest Waiver requirements, you can bypass both of these limitations and file your own EB-2 NIW petition, without a U.S. employer, and without seeking Labor Certification approval.
The additional National Interest Waiver factors are:
Your proposed endeavor is of national importance and intrinsic merit;
You are well placed to further the endeavor;
On balance, it is in the US’s interest to waive the requirement for Labor Certification.
Waiting lists
O-1 Nonimmigrant Category: There is no annual limit, and therefore there is no waiting list, for O-1. You could begin working in the U.S. as soon as your O-1 petition (I-129) is approved. You may even Premium Process this petition, to secure a faster processing time (usually within 15 business days). However, the O-1 is valid only for up to three years at a time. It may be extended.
EB-1A Extraordinary Ability immigrant category: Because the EB-1 is an immigrant status, it is subject to a yearly quota. The waiting lists for EB-1A are not as onerous as those for many other categories, because the demands of the category are more stringent. However, China and India both have waiting lists, which mean that Chinese- and Indian-born petitioners cannot simultaneously file the I-140 EB-1A petition and the I-485 Adjustment of Status petition. Instead, China- or India-born petitioners must maintain a valid nonimmigrant US status during the pendency of their EB-1A petition and subsequent waiting list.
Filing an EB-2 first and then an EB-1A later
You may file more than one separate I-140 petition for yourself. In such a case, you may use the earliest I-140 Priority Date to govern all of your I-140 petitions. Historically, EB-1A waiting lists are much shorter than EB-2 waiting lists. Therefore, you can file an EB-2 NIW case if your skills are “exceptional”, and then later file an EB-1A case once your achievements become “extraordinary” to make use of a shorter waiting list.
E.g. a Chinese-born candidate faces a longer EB-2 waiting list and a shorter EB-1A waiting list. The candidate may file an EB-2 with I-140 right away, and then work for several more years to develop a strong basis to file an EB-1A on I-140. This EB-1A case may borrow the earlier Priority Date of the EB-2.
Are you an exceptional ability individual who is significantly above the normal skill of your field? Contact us today at intake@bhulaw.com or via Wechat at “BenjaminCJHu” to discuss EB-2 National Interest Waiver petitions and get started on your US immigration journey.