Differences between an EB1A Extraordinary Ability and EB2 National Interest Waiver Green Card Category

Both the EB1A and EB2 NIW are popular pathways for a green card among individuals who have garnered recognition in their fields for having made outstanding contributions to his or her field.

An easy way to understand this distinction between the EB1A and EB2 NIW is what the government focuses on. For the EB1A, the main focus is the applicant himself or herself. You are trying to prove that you are well-known, you’re a famous figure in your field.

The focus of the EB2 NIW application is your plans in the U.S. The question is whether your proposed work has national importance. You could be working behind the scenes, but for example if you developed a patent that makes batteries for electric vehicles more cost-efficient to manufacture, and you want to continue doing that kind of R&D work in the United States in collaboration with a U.S. university or company, the EB2 NIW could be a great option for you even if you’re personally not well-known or famous for having done that work.

Let’s look a little deeper into who can qualify for each category.

For the EB1A, Congress intended to set a “very high standard” for qualification in this category. Each applicant should demonstrate he or she has “sustained national or international acclaim”; and that “his or her achievements have been recognized in the person’s field of expertise.” Indeed, it is a category “reserved for the small percentage of individuals at the very top of their fields of endeavor.” There is no requirement to show an advanced degree, however.

So for an EB1A application, how do you prove you’ve reached that top level of renown and expertise? The government will engage in what is called a “two-step analysis.” The 1^st step question is a relatively straightforward assessment of whether you have submitted evidence meeting 3 out of 10 criteria.

• 1) Nationally or internationally recognized prizes or awards.
• 2) Membership in organizations that require outstanding achievement (e.g., the National Academy of Sciences).
• 3) Published material about you in major media or trade magazines.
• 4) Acting as a judge of the work of others (e.g., peer reviewing for a scholarly journal, member of a Ph.D. dissertation committee).
• 5) Original contributions to the field (which has provoked widespread commentary).
• 6) Authorship of scholarly articles.
• 7) Display of work at artistic exhibitions or showcases.
• 8) Leading or critical role for organizations with a distinguished reputation. (e.g., Vice President of the electric vehicle division at Volvo).
• 9) Receipt of high salary in relation to others.
• 10) Commercial success in the performing arts, (volume of sales, box office metrics).
• Comparable evidence. (e.g., “original contribution” can be met by an Olympic coach showing one of whose athletes wins an Olympic medal).

But the challenge is the 2^nd step, what is called a “final merits determination.” Is the evidence enough to demonstrate that the applicant meets the required “high level” of expertise that the regulation describes?

For example, if you have 1 scientific article published, have conducted 1 peer review, have received a salary at the top 20% percentile, you could pass the 1^st step analysis by providing evidence under 3 out of 10 criteria, but this may not be enough to pass the 2^nd step, final merits determination, in persuading the officer that you are among the “select few” who have reached the “very top” of your field.

Another thing to note is that the government reviews EB1A applications with a more stringent eye than an O-1 application, even though the eligibility criteria is written in the same language. So not all individuals who get approved would automatically qualify for an EB1A.

Now let’s consider the EB2 NIW category. To qualify, first of all, you need to have an advanced degree, which is defined as a Masters or above. Ph.D., Master of Arts, Master of Science, MBA, a J.D., M.D. should work. Second, you need to persuade the USCIS officer that you meet all three prongs for the National Interest Waiver test, which is based on a case called Matter of Dhanasar:

It is usually not enough to say you will provide good service to one company or to your immediate clients. You will want to show that your work will not only benefit your immediate employer or clients, but will have broader benefits to the industry or field you’re working as a whole. New research that is published in journals or published in patents frequently advance the state of scientific knowledge and are shared with other experts, so that is usually a good way to show industry-level impact. You need to show how you are offering innovations that will improve things are done in the industry as a whole.

Here the government will want to see a record of success in prior related endeavors. Have you published similar research in the field that got a high number of citations? Have you worked on government-funded research projects? Has your work been featured in the media, even if your name has not been mentioned?  What are some major projects you have worked on that have seen broad commercial success?

An applicant will need to meet Prong 1 and Prong 2 to get to this final question in Prong 3. To support the case, you can argue that the national interests involved in your work is urgent, for example, requiring quick advances in a fast-moving field, such as semiconductors, artificial intelligence, 5G technology. If you are an entrepreneur and you be creating jobs in the US and raising tax revenues for the government, that can also be a favorable element here.

In conclusion, the focus of an EB2 NIW and EB1A petition are very different. Some people may be famous in their fields, for example an athletic coach. But if they’re planning to enter the US to open a gym and teach and mentor a small number of student athletes, it may be difficult to argue for a EB-2 National Interest Waiver how the impact of their teaching and mentoring activities may rise to a nationally important level. On the other hand, an EB1A may work better if this person can prove how they’re well-known in the field at a national level in the media, in the industry, or by other evidence such as awards won and other original contributions.