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Should I self-petition for my NIW/EB-1A or use an employer sponsor?

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The National Interest Waiver (NIW) and EB-1A are green card categories that have the special benefit of allowing foreign nationals to petition for themselves, without needing a U.S. employer or sponsor of any kind. Sometimes foreign nationals have the option of applying for themselves or through a U.S. company. Below we discuss the NIW and EB1A in more detail, along with some considerations when deciding whether to self-petition or be sponsored by an employer.

What is the National Interest Waiver (NIW) green card?

Foreign nationals applying for a green card through a National Interest Waiver will be applying in the EB-2 category. As a threshold requirement to qualify, the applicant must have either an advanced degree (Masters or higher) or be able to demonstrate exceptional ability in their field. Exceptional ability means the applicant can demonstrate a degree of expertise significantly above the ordinary in the fields of science, art or business. Once the applicant meets this threshold requirement, they must show that they merit a waiver of the normal EB-2 requirement of a job offer and labor certification based on their proposed endeavor in the United States.

The criteria to qualify for a National Interest Waiver are below:

  • The proposed endeavor has both substantial merit and national importance;
  • The foreign national is well-positioned to advance the proposed endeavor; and
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

What is the EB-1A green card?

The EB-1A green card is appropriate for applicants who have risen to the very top of their field and can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The applicant must either show a one time achievement such as a Pulitzer prize, or be able to meet at least 3 out of the 10 criteria listed below.

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

What are some considerations when deciding whether to self-petition or have an employer sponsor the petition?

• Consider your relationship with the employer and your future goals. The main benefit of choosing to self-petition is that it gives the applicant significant flexibility if there are any changes to the employment relationship while the immigrant petition is pending. If the employer files the I-140 on behalf of the applicant and the employment relationship ends while the I-140 is pending, it can potentially require the applicant to file a new I-140 petition. This situation can be avoided if the applicant self-petitions.
• Consider whether having the employer as a sponsor would strengthen your petition. For example, in an NIW case, if the proposed endeavor and the arguments about substantial merit and national importance are inextricably connected to the work of the employer, it may be beneficial to have the employer file as the sponsor.
• Consider the fees and logistics of preparing the application. Some applicants may prefer to have an employer sponsor the petition so that the employer will help with the legal and filing fees connected to the NIW or EB1A petitions and will also facilitate the relationship with the immigration attorney.

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