How to Get a Green Card Through Self Petition

3. Overview of EB1A Visa

What is the EB1A Visa?

The EB1A visa is an immigrant visa for people with an extraordinary ability in the arts, sciences, business, education, or athletics.

• Extraordinary ability means “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” [8 CFR Section 204.5(h)(2)]

• The EB1A visa does not require you to have a job offer in the United States. You can apply for an EB1A visa on your own behalf through self-petition.

What are the EB1A Visa Requirements?

There are 3 requirements for getting an EB1A visa:

1. You must demonstrate that you have an extraordinary ability in a particular field in the arts, sciences, business, education, or athletics.

2. You seek to enter the United States to continue to work in the field of your extraordinary ability.

3. Your entry to the United States will substantially benefit the United States.

Lets now go through each of these requirements

i. Prove that You Have an Extraordinary Ability

To prove that you have extraordinary ability, you must show that you have sustained national or international acclaim and that your achievements have been recognized in your field of expertise. [8 CFR Section 204.5(h)(3)]

There are 2 ways you can show this:

1. Evidence of a one-time achievement of a major internationally recognized award;

• Examples of awards that would meet this criterion are the Nobel Peace Prize, an Academy Award, an Olympic gold medal, etc.

2. Or evidence that you satisfy at least 3 of the 10 evidentiary criteria for an EB1A visa (listed below):

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence in your field of extraordinary ability

• Membership in an association in your field of extraordinary ability, which requires outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields

• Evidence of published material about you in professional or major trade publications or other major media, relating to your work in the field of extraordinary ability

• Evidence of your participation as a judge of the work of others in your field of extraordinary ability

• Evidence of original scientific, scholarly, artistic, or business-related contributions of major significance to your field

• Evidence of authorship of scholarly articles in your field, in professional major trade publications, or other major media

• Display of your work in your field at artistic exhibitions or showcases

• Evidence that you have performed a leading or critical role for organizations or establishments that have a distinguished reputation

• Evidence that you have commanded a high salary/remuneration for services, in relation to others in your field.

• Evidence of commercial successes in the performing arts.

Keep in mind:

• The evidence you submit must show that your extraordinary ability has been sustained. This means that your extraordinary ability must have been uninterrupted and ongoing.

• If one of the 10 criteria listed above doesn't apply to your field, you may be able to submit comparable evidence to establish your eligibility for an EB1A visa.

USCIS has a 2-step process for determining whether or not to approve your EB1A petition.

Step 1. - Evidentiary Threshold

• In step 1, USCIS just reviews your petition to make sure that you have submitted evidence that fulfills at least 3 of 10 categories listed above.

• If you have not fulfilled at least 3 of the 10 categories, then your petition will be denied.

Step 2. - Final Merits Determination

• In step 2, USCIS considers the quality of the evidence you submitted, to determine if you meet the definition of extraordinary ability.

• Remember, to get approved for an EB1A visa, you must show that you are 1 of the few at the very top of your field.

• It is in this second step where USCIS is critically analyzing your evidence to see if you are at the top of your field.

ii. Continuing to Work in Your Field of Extraordinary Ability

• The second requirement to get an EB1A visa is you must show that upon entry to the United States, you will continue to work in your field of extraordinary ability.

• If you claim to have extraordinary ability in one field and show that you will be working in the United States in a different field, this may result in a denial of your EB1A visa application.

Here’s some evidence you can use to show that you will be working in your field of extraordinary ability:

• A statement from a potential employer that you plan to work with;

• A contract for work you will be doing in the United States;

• A signed statement by you, explaining precisely the type of work you plan to do in the United States.

iii. Your Entry to the United States will Substantially Benefit the United States

• The final requirement to get an EB1A visa is to show that the United States will substantially benefit from permitting you entry.

• This requirement is generally satisfied, just by showing that you will continue to work in your field of extraordinary ability.

• The evidence you submit to satisfy this requirement can usually be limited to a written statement that your entry to the US will substantially benefit the country.

Now that we’ve discussed the EB1A visa, lets look to the National Interest Waiver.

4. Overview of the National Interest Waiver

What is the National Interest Waiver?

The national interest waiver is an option only available under the EB-2 visa category. This option allows you to waive the labor certification requirement and the requirement that you have a US job offer (which are usually required for an EB-2 visa).

• As discussed above, most employment-based visas require you to have a job offer from a US company. The  US company is also typically required to get an approved Labor Certification before they can hire you.

• With a national interest waiver, you can skip the labor certification process, and apply for a green card yourself, through self petition.

• To get a national interest waiver, you must show that you are qualified for an EB-2 visa and that your services are in the national interest.

What are the National Interest Waiver Requirements?

To get a national interest waiver, you must meet 4 requirements:

• Qualify for an EB-2 visa

• The specific endeavor you plan to work on must have substantial merit and national importance

• You must be well positioned to advance your proposed endeavor

• You must show that waiving the requirements to have a US job offer and get an approved labor certification are in the national interest of the United States.

Now let's go over each of these requirements:

i. Qualify for an EB-2 Visa

The national interest waiver is an option available to foreign nationals that would otherwise qualify for an EB-2 visa. So, to successfully get a national interest waiver, you must qualify for an EB-2 visa.

Two ways to qualify for an EB-2 Visa:

• Advanced Degree Professional

• Exceptional Ability

Advanced Degree Professional

In order to qualify as an advanced degree professional:

• The field you plan to work in must require an advanced degree

• And you must possess an advanced degree (any academic or professional US degree or foreign equivalent above a baccalaureate degree) or you must have a baccalaureate degree plus 5 years of progressive work experience in the field you plan to work in.

Exceptional Ability

To qualify for EB-2 through exceptional ability, you must satisfy at least 3 of the following criteria:

• You have a degree in your field of exceptional ability

• You have 10 years of full-time experience in your field

• You have a license to practice your profession

• You have commanded a salary/remuneration that demonstrates your exceptional ability

• Membership in professional associations

• Recognition for your achievements and significant contributions to your field by peers, governmental entities, or professional or business organizations.

• Comparable evidence may be submitted if the above categories are inapplicable.

In addition to meeting the threshold of qualifying for an EB-2 visa as either an advanced degree professional or through exceptional ability, you must also satisfy 3 additional requirements for the national interest waiver.

ii. The specific endeavor you plan to work on must have substantial merit and national importance

• In order to qualify for a national interest waiver, the specific endeavor that you plan to work in must have both substantial merit and national importance.

iii. You must be well positioned to advance your proposed endeavor

• Another requirement to get a national interest waiver is that you must show that you are well positioned to be successful in your proposed endeavor.

• This requirement focuses on your ability to contribute to your field.

• To satisfy this requirement, you should provide evidence of your particular knowledge, skills, education, evidence of success in your field, etc.

iv. You must show that waiving the requirements to have a US job offer and get an approved labor certification are in the national interest of the United States.

• Another requirement to get a national interest waiver is that you must show that waiving the requirement to have a US job offer and get an approved labor certification are in the national interest.

• Here, the objective is to show that the United States would benefit from waiving the requirements of having a job offer and getting an approved labor certification.

• Some of the ways you can satisfy this requirement are by showing the importance of your field or by showing that there is an urgency so great that there is no time for the labor certification process.

5. Comparison Between EB1A and National Interest Waiver

Here are a few things to know about the differences between the EB1A visa and the National Interest Waiver:

• The EB1A visa is eligible for premium processing. This means that for an additional fee of $1,225, USCIS will issue a response to your EB1A application within 15 days. Premium processing is currently not an option for the National Interest Waiver.

• The National Interest Waiver has a visa backlog for citizens of China and India. This means that even after approval of your EB1A application, if you were born in China or India, there will be a substantial wait (following approval of your National Interest Waiver application) before you can get immigration benefits. There is currently no backlog for any countries under the EB1A visa category.

• The EB1A is more difficult standard to meet than the National Interest Waiver.

6. Conclusion

Many professionals planning to immigrate to the United States are confronted with the problem of not having a US job offer or not being able to find a US company willing to sponsor them for a visa.

Fortunately, there are 2 options that allow you to apply for a green card through self petition:

• The EB1A visa

• The National Interest Waiver

With both of these options, you do not need a company sponsor and can self petition for your green card.

To get an EB1A visa:

• You must have an extraordinary ability in the arts, sciences, business, education, or athletics.

• You must seek to enter the United States to continue working in your field of extraordinary ability.

• Your entry to the United States must substantially benefit the United States.

To get approved for a National Interest Waiver:

• You must qualify for an EB-2 visa

• The specific endeavor you plan to work in must have substantial merit and national importance

• You must be well positioned to advance your proposed endeavor

• You must show that waiving the requirements to have a US job offer and get an approved labor certification are in the national interest of the United States.

Final Thoughts

• Both of these visa categories are highly complex.

• The decisions on these petitions are also highly discretionary.

• In order to give yourself the best chance of approval, it is critical to work with an experienced immigration lawyer.

• You should not attempt to file one of these petitions on your own, without the help of an immigration lawyer.

If you have any questions or need help getting a green card through self petition, email me directly at Michael@AshooriLaw.com. I'm very responsive via email and would be happy to help you.

Ashoori Law is a US immigration law firm focused on helping professionals get visas to the United States. Reach out to us for a complimentary consultation.

Got a question? Lets talk about it.

Resources

• EB1A Visa Guide - Everything You Need to Know About the EB1A Visa

• Business Immigration: Law & Practice, 2nd Ed. - Vol. 2: Chapter 3

• 8 CFR Section 204.5(h)(2)

• 8 CFR Section 204.5(h)(3)

• Employment-Based Immigration: Second Preference EB-2