NIW vs. O-1 visa, what is right for you?

The National Interest Waiver (NIW) green card and O-1 visa are both popular visa categories among highly skilled individuals who have received a certain degree of influence and recognition in their fields. However, often applicants who could qualify for one category encounter difficulties and denials when they apply under another category that does not fit as well. Therefore, it is important to consider the following key differences as you decide which option is right for you.

The National Interest Waiver (NIW) is a subset of the EB2 employment based green card category that allows qualifying individuals with an advanced degree or exceptional ability to self-petition for a green card, by allowing them to bypass the labor certification requirement for employment-based immigration. To succeed, the NIW applicant must prove that their work in the United States must have national importance, in addition to the applicant being well positioned to advance this work.

The O-1 visa is a non-immigrant visa that allows qualifying individuals of extraordinary ability to work in the U.S. for a U.S. employer, and can be extended without limit, provided the individual continues to meet the requirements. Unlike the NIW, applicants cannot self-petition for an O-1 visa and must have a job offer from a US company. However, an applicant can also petition through a US agent or by generating a job offer from a company they own.

The NIW could be a good option for individuals who do not have a job offer, a US agent, or a US company, but who can demonstrate their work in the United States would be in the national interest, for example by introducing advancements or innovations to a key sector or industry, such as semiconductors, computing, cybersecurity, or healthcare.

NIW could be an attractive option for entrepreneurs who are looking to develop their own business in the United States and work in partnership with diverse industry actors. Potential for job creation is a positive factor for an NIW application.

The NIW could also be a preferred option for applicants who wish to bring their family members to join them in the United States. The spouse and minor children of NIW applicants can also qualify for a green card, which provides the ability to permanently live and work for any employer in the U.S.

The O-1 could be a good option for individuals who already have a work arrangement with a U.S. entity, and who have already received a significant degree of recognition for their accomplishments in their field. Eligibility for the O-1 depends more on the applicant’s individual fame and accomplishments in their fields, rather than on the importance of the applicants’ proposed work in the United States. Therefore, the O-1 tends to work best for individuals who have already established themselves as a leader in their field.

One significant advantage of the O-1 relates to timing. The green card application process through the EB-2 NIW category could take several years to complete processing, especially if there are more applicants than the annual quota for immigrant visas for the EB-2 category, creating a backlog. By contrast, the O-1 visa does not have a quota, and is typically processed much faster. Petitioners can use premium processing to get USCIS’s response on the I-129 petition within 15 days. Once the approval is secured, it is often a matter of months to secure an interview appointment at many consulates.

Ultimately, deciding between NIW and the O-1 visa will depend on the applicant’s individual circumstances and goals. It is highly recommended you consult with an experienced immigration attorney to make an informed decision that would work best for your situation.