The EB-1A and EB-2 NIW green card categories share similarities such as allowing self-petitioning and requiring high skill levels, but display some differences like wait times, different standards for requirements, or availability of premium processing. In this article, we discuss the EB1 vs EB2 NIW green card categories. By the end of this article, you should understand them and have the tools to decide on the strategy for your own case.
EB-1A vs EB-2 NIW : Similarities
These two categories are similar in that they allow self-petition (no job offer required), there is no labor certification step (which saves more than 1 year of processing time), and can be potentially cheaper than other options when not using lawyers.
Similarity #1: Self-petition
You can apply to both EB-1A and EB-2 NIW without the need for a job offer. This means that one can self-petition. In other words, a job offer is not required. This feature of both green card categories makes them very appealing to professionals who work in organizations that do not sponsor immigration petitions. In addition, they are a good avenue for people living outside the United States to obtain the necessary permits to immigrate.
Similarity #2: No labor certification
Because both EB-1A and EB-2 NIW allow self-petitioning, labor certification is not needed.
Typically, in an employment-based green card petition, the process starts with labor certification (also known as PERM). During this PERM process, the company must show the Department of Labor (DOL) that there are no American workers willing and able to do the job. In addition, they should prove that they will pay at least the prevailing wage for the occupation. This is to ensure that the wages and working conditions of the existing US workers will not be negatively impacted by hiring an immigrant worker.
This is a step that consumes months of processing time. The DOL typically issues the prevailing wage in 6 to 8 months. Then, the company tests the market for US candidates for at least 2 months. Finally, the PERM is submitted, and it takes about 6 months for DOL to process it. Of course, there is always a chance for audits or denials to happen, which would delay the timeline. This timeline also assumes no US worker meeting the criteria applies for the position. All in all, more than one year will pass before the PERM process comes to an end.
The flow chart below indicates the typical employment-based green card process. From the 3 typical steps, PERM is not necessary when filing for EB-1A or EB-2 NIW:
Similarity #3: Potentially less expensive process
Since EB-1A and EB-2 NIW green card applications can be self-petitioned, the applicants can decide if they use an immigration lawyer or not. Typically, the cost of the attorney fees is the highest among the total green card cost. In these two categories, the petitioner can still pay for that service and obtain professional help and advice. However, one can also prepare their own petition. In that case, the total cost of the whole process decreases from approximately $10,000 (with lawyers) to between $2,000 and $3,000 with a do-it-yourself (DIY) approach. Check out a very detailed breakdown of the costs for each case in this other blog post.
Similarity #4: Highly skilled individuals
Both the EB-1A and EB-2 NIW categories are a good fit for highly skilled professionals. This is because they require proof of extraordinary ability (EB-1A) or advanced degree or exceptional ability (EB-2 NIW). Only highly skilled individuals will realistically meet the qualifications.
Similarity #5: Benefit to the country
Both EB-1A and EB-2 NIW have requirements to show that the entry of the petitioner into the US will benefit the country. For example, for EB-1A the USCIS policy manual states that “the person’s entry must substantially benefit the United States in the future”. For EB-2 NIW the first prong of Dhanasar requires to prove that the proposed endeavor is of substantial merit and of national importance.
Similarity #6: Premium Processing for EB-1A and EB-2 NIW
While in the past Premium Processing was only available for EB1A and not for EB2 NIW, this is not the case anymore. Luckily, USCIS announced during 2022 that they were going to expand this expedited processing method to NIW cases. Finally, after a period of progressive implementation, Premium Processing will be available to all EB2 NIW applicants after January 30, 2023.
Even if USCIS finally approved Premium Processing for NIW, the expedited processing times will be different for EB-1A and EB-2 NIW. Submitting a request for Premium Processing for EB-1A results in a processing time of only 15 calendar days. For EB-2 NIW, however, the Premium Processing time will be 45 days. That is a full one month longer than for EB-1!
EB-1A vs EB-2 NIW : Differences
Difference #1: Exceptional vs extraordinary abilities
The EB-1A category is a higher standard to meet by applicants than EB-2 NIW. This is because this green card category is reserved for those candidates who display what USCIS calls “extraordinary ability”. To prove this an applicant must provide evidence of the fulfillment of at least three out of ten criteria listed in their website.
In EB-2 NIW the applicant may prove that they hold an advanced degree (master’s or Ph.D.) or show “exceptional ability“. So, when comparing EB-1A and EB-2 NIW one can notice that while EB-1A requires extraordinary ability, for EB-2 NIW an advanced degree may suffice provided that other requirements of the category are met.
Only when the applicant does not hold an advanced degree, he or she must prove exceptional ability. To prove this, the applicant must show evidence of meeting at least 3 of criteria listed on the official website. It is easy to notice how these criteria are generally easier to meet than those listed for EB-1A extraordinary ability. For example, while for EB-1A one criterium is “Evidence of your membership in associations in the field which demand outstanding achievement of their members”, for EB-2 NIW there is a similar but less demanding criterium that asks for “Membership in a professional association(s)”.
Below are excerpts from the USCIS Policy Manual with specific definitions of extraordinary and exceptional ability, which illustrate the different levels the USCIS establishes for these two terms:
Extraordinary ability (EB-1A): “is one of that small percentage who have risen to the very top of the field of endeavor.”
Exceptional ability (EB-2 NIW): “the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
USCIS Policy Manual, Volume 6
Difference #2: Final Action Dates and Priority dates for EB-1A vs EB-2 NIW
Because EB-1A and EB-2 NIW belong to different employment-based green card categories, they are also listed in different rows on the visa bulletin. Generally, the wait times for EB-1A are equal to or shorter than for EB-2 NIW. For petitioners of many countries, this may not make a difference, since both categories may be current (no wait times to file adjustment of status). However, for other petitioners such as those born in India and China, the EB-1A category will be a shorter path to permanent residency.
In the example below (Visa Bulletin of August 2022) you can see how the final action dates for all countries for EB-1A are current. This means that someone with an approved I-140 can immediately file for adjustment of status (form I-485). However, not all the final action dates for EB2 NIW are current. For example, someone born in India can only file an I-485 if their priority date (listed in their notice of action for I-140) is earlier than January 2015. This is more than seven years of wait time compared to no wait if filing an EB1A green card! Do you have questions about how to read the Visa Bulletin? Check out this specific blog post to learn how to interpret it.
Should you apply for EB-1A or EB-2 NIW?
There is no magic answer to this question. Each case is different, and you need to carefully review the requirements of each category and make the best decision for your situation. Some factors to consider include:
- Your profile of qualifications. The EB-2 NIW category has requirements that are generally “easier” to meet. However, there may be applicants with a profile strong enough to meet both the EB-1A and the EB-2 NIW criteria.
- Your country of birth. If you think you qualify for both EB-1A and EB-2 NIW, it is important to look at the visa bulletin and figure out how long the wait time would be for you. For applicants from India and China it may make sense to consider EB-1A due to the long wait times for the EB-2 NIW category.
Can you apply for both EB-1A and EB-2 NIW?
Of course, you may always consider applying for both categories if you believe you have a decent chance in both EB-1A and EB-2 NIW. The reality is that a lot of the requirements overlap, and much of the write-up for one category can be used for the other one. The biggest effort is to adapt the petition cover letter to present your case in an optimized manner for each category.
Applying for both EB-1A and EB-2 NIW may increase your chances. Of course, it is more expensive to do this since you will be paying USCIS fees for both applications. However, it involves a financial risk of “only” $700 if you are applying for I-140 only, without concurrent adjustment of status.
Many may be wondering… but can I apply for two I-140 at the same time? The answer is yes. The I-140 for EB-1A and the I-140 for EB-2 NIW are independent and do not conflict with each other in any way. In fact, this is a similar route I followed when I applied for EB-2 NIW before the immigration attorneys from my company filed for EB-1B. I tell that story in a YouTube video that you can check out here.
Conclusions to EB-1A vs EB-2 NIW
The EB-1A and EB-2 NIW green card categories share similarities but display some differences, which we reviewed in this article. As a prospective petitioner, you should consider your own profile of qualifications, the requirements for each category, and your country of birth, before deciding on one category or the other. Finally, you can also consider applying for both categories if that is the strategy that makes sense for you.
Resources
- EB-1A dedicated website: If you are interested on exploring the EB1 route for your immigration future, check out my dedicated website to the EB1A green card category.