EB1 vs EB2: The Right Option For You

If you are considering an employment-based visa, specifically either the EB1 or the EB2, you likely have many questions about how they differ, and which option would be the best one for you. The EB1 and EB2 are often thought of as very similar, but, as this article shows, there are important differences to keep in mind when deciding which one to apply for.

How do the requirements differ?

The EB1 category is only available for people who fit in one of these three subcategories: 1) persons of extraordinary ability, 2) outstanding professors and researchers, and 3) multinational executives and managers. As these subcategories make clear, EB1 applicants are generally at the top of their fields and are thus required to meet stringent requirements to prove this.

The EB2, however, is for individuals who have 1) an advanced degree, 2) exceptional ability, or 3) are eligible under the National Interest Waiver (NIW). The threshold is lower for the EB2, as it does not require exceptional ability or to be outstanding. Instead, an EB2 can be granted if you have a master’s or doctorate degree or its equivalent, for example.

Is a sponsor needed?

One of the biggest differences between the EB1 and EB2 is that the EB1 does not require that an applicant have a job offer and can self-petition without an employer’s involvement. Similarly, the EB2 NIW (National Interest Waiver) also allows applicants to self-petition if the proposed work is considered to have substantial merit and national importance. On the other hand, the EB2 requires a petitioner, which can often be a burdensome task and lengthens the process of getting the green card. As a result, the EB1 is likely a better option for you if you do not have a petitioner and meet all the requirements.

How do the wait times differ?

As discussed above, the EB1 has more stringent requirements than the EB2 and because of this, there are less applicants for it each year. With less applicants, the wait times tend to be shorter than that of the EB2. Of course, wait times differ based on the applicant’s country of citizenship, and priority times are updated monthly on the Visa Bulletin if you want the most updated processing times.

Is PERM Labor Certification required?

PERM Labor Certification is the process your employer will go through on your behalf, including recruitment, to ensure that you are not displacing any qualified U.S. workers. However, PERM is not required for the EB1 or the EB2 with a National Interest Waiver. The PERM process can take many months and is yet another reason why the EB1 and EB2 NIW tend to process quicker than the regular EB2.

Can family members join the EB visa holder in the US?

One of the most common questions we get regarding any visa type is whether family members can join the main applicant in the US. For family members of EB1 and EB2 visa holders who have an approved I-140 petition, their spouse and unmarried children, under the age of 21, may be eligible to apply for admission to the United States in one of the following immigrant categories: E14 (if EB1 spouse),  E15 (if EB1 child), E21 (if EB2 spouse), and E22 (if EB2 child).

Do I have to choose, or can I file for both?

At the beginning of this article, we mentioned that the EB1 and EB2 are often thought of as similar because they do have some overlapping criteria. Because of that, people tend to be curious if they could apply for both options at the same time and if there are any benefits or consequences to this. You can, if you find that you are likely eligible for both categories, apply for both the EB1 and EB2 at the same time without any consequences. It will increase your chances of having at least one of them approved. Of course, applicants must pay the fees for both applications but if both are approved, you can then choose which green card suits you and your situation the best.

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My name is Michael Ashoori and I'm a U.S. immigration lawyer and the founder of Ashoori Law. As an immigration lawyer, I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.  If you have any questions about the EB1 or EB2 visas, or any other immigration-related questions, feel free to schedule a free consultation by clicking this link.