EB-1 Green Card vs NIW All Key Differences Explained

Getting a green card through employment is one of the most popular methods of immigration into the United States. However, for most of the green card options, you need to have a U.S. employer sponsor you for your immigrant visa. If you are a business owner, do not have an occupation that is conducive to this setup, or would simply like to immigrate without going through an employer, there are a few options available. Two such options are the EB-1 green card and the National Interest Waiver. In this post, we’ll discuss the similarities and differences between these two paths and which may be better for your situation.

Difference between EB-1 Green Card vs NIW

Policy Update- On September 12, 2023 USCIS updated the manual to offer clarifying guidance on examples of evidence that may satisfy the relevant criteria for employment first-based preference applicants, as well as how USCIS officers evaluate the totality of the evidence for eligibility. See the complete details in this EB-1 policy update post. 

The EB-1 green card is the most prestigious employment-based green card available. It covers a wide variety of potential applicants so it is further broken down into three subcategories:

EB-1A: This subcategory is for aliens with extraordinary achievements in the areas of business, science, art, athletics, and education. To prove this achievement, you will need to show adequate documentation and evidence showing things such as awards, high compensation, national recognition, or publications in your field in order to qualify.

EB-1B: This is for outstanding researchers and professors. Those that have made significant contributions to their scientific and educational fields and are recognized internationally are qualified for this subcategory.

EB-1C: Lastly, this subcategory is for the executives and managers of multinational companies. Because the EB-1C requires applicants to have a sponsoring employer, we won’t be using this subcategory to compare to the National Interest Waiver.

Processing Time

The EB-1 processing time is broken up into three main stages. The first stage involves having an I-140 petition processed. This can take an average of six months, but petitions for the EB-1A and EB-1B can be expedited through an optional feature called premium processing, which allows petitioners to pay an additional fee and file an I-907 form in order to shorten the normal I-140 processing time from that six-month average to just 15 calendar days.

The second stage involves something called priority dates. When a family or employment-based green card petition is received by the USCIS, this date is established as the petition’s priority date. Every month, the Department of State releases a visa bulletin with a series of “final action dates” for each type of green card and based on country of origin. When the final action date in your category matches or passes your priority date, a green card will become available. Depending on the category and country of origin, this can take several years or no time at all.

The third stage depends on whether you are currently in the U.S. under a valid nonimmigrant visa status such as an H-1B or O-1 visa or if you are outside the U.S. If you already have a visa, then you will be able to either adjust your status by filing an I-485 and waiting about six months for it to be processed (with no premium processing) or get your green card through consular processing, which has a varying processing time based on the caseload of the U.S. consulate or embassy.

One of the greatest differences between the NIW and the EB-1 green card outside of the requirements is the processing time. Unlike the EB-1, the NIW does not allow for premium processing, which would reduce the petition’s processing time to just 15 days for an additional fee.

Because premium processing is not available, those who are pursuing an NIW must wait between 10.5 months to 2 years, depending on what country you are filing from. Since each NIW case is analyzed individually, processing times may vary widely.

Benefits

The main benefit of getting an EB-1 lies in the fact that none of the three subcategories require a PERM Labor Certification. The PERM is a process put in place by the Department of Labor in order to prevent employers from abusing the green card process and displacing U.S. workers. It requires employers to go through an extensive recruiting process for the job of the beneficiary to ensure that no qualified U.S. workers are available for the position.

If you do not have an employer, then you will not be able to acquire a PERM and so will not be eligible for a green card. However, because the EB-1 does not require it, those without sponsoring employers can apply. That being said, the EB-1C still requires you to have an employer, even though it does not require the PERM.

What is a National Interest Waiver?

Just a step down from the EB-1, the EB-2 green card is meant for those with exceptional ability and those with advanced degrees. However, unlike the EB-1, a PERM is required along with a sponsoring employer. The National Interest Waiver (NIW) was created to allow EB-2 applicants to waive the PERM requirement and therefore waive the need for a sponsoring employer.

Who Would Benefit from an NIW?

This makes the NIW ideal for self-employed entrepreneurs as well as doctors with their own practice. Anyone who does not have an employer to sponsor them but can prove that their work would benefit the national interest would benefit from the NIW.

Requirements

In order to get an NIW, you will need to make sure you and your work qualify under the following three stipulations:

1. You must show that your work will contribute substantially to the U.S. in the areas of business, science, culture, education, health, and technology. While you don’t need to show a measurable projected impact on these areas from your work, it could help your case to illuminate the impact.
2. You will need to prove that you are in the best position to advance your work. It must be apparent that you are uniquely qualified to make your work as beneficial to the nation as possible. This can come in the form of degrees, certifications, or licensures directly related to your work.
3. You must show that the U.S. will benefit “on the balance” by granting you an NIW. This phrase is used because upholding the PERM benefits the U.S. Making sure that employers do not take advantage of the green card process is in the best interest of U.S. workers. Therefore, waiving the PERM requirement usually does not benefit the nation. So you must show that the U.S. benefits more from waiving the PERM requirement for you than it does by upholding it. This is what it means for the U.S. to benefit “on the balance”.

Keep in mind that, in addition to qualifying for the NIW, you will also need to qualify for an EB-2 by showing that you either have exceptional ability or an advanced degree. Also, getting an NIW for physicians has different requirements.

EB-1 vs NIW: Which is Best?

Because the requirements for each one are so different, it is rare that a person would be qualified for both the EB-1 and the NIW. However, those that do qualify for both have a choice to make. An EB-1 may be easier to have approved than an NIW depending on your situation, as NIW cases are carefully examined. Additionally, an EB-1 has the potential to have a much shorter processing time due to being eligible for premium processing. Additionally, with an EB-1, you do not need to be actively working in order to qualify, which is not the same for the NIW.

However, the final action dates for the EB-1 and EB-2 vary from month to month, year to year. At times, the EB-1 dates are further back than the EB-2 dates, causing those pursuing the former to wait much longer than those pursuing the latter, especially for those that are from heavily populated countries such as India or China.

Therefore, if you are fortunate enough to find yourself in a position where you can choose between an EB-1 and an NIW, either option may be better for you depending on your circumstances. The best course of action is to bring the choice before an immigration attorney to review your case.

EB-I and NIW Petitions

National Interest Waivers and extraordinary achievements petitions enable the most skilled foreign nationals to obtain a green card without looking for sponsorship. These petitions differ from other green card application processes because applicants do not need to have been given a job offer in the United States for their petitions to be successful. These cases are also ideal for applicants with high levels of expertise in their areas of specialty.

An extraordinary achievement petition can be a great route to take for immigration if you have vast experience in your field. This can include achievements in sports, arts, entrepreneurship, and many other fields such as medicine, engineering, and science. However, petitions for National Interest Waivers must have national importance and substantial merit for the proposed endeavor.

Watch the video below to hear how Attorney Quindemil breaks down the significance of the proposed endeavor in an EB-2 NIW filing.

EB-1 Petitions

The extraordinary achievements petition is for people with extraordinary abilities in their areas of specialization and who have proven to be the best in that field. You do not need a job offer to obtain permanent residency in the U.S. if you are considered a person with extraordinary achievements.  Although you can make a self-petition for your green card, you must prove that you are traveling to the United States to work in your area of specialization.

Self-petition green cards can be a good avenue for businesses to bring their start-ups to America. This petition is also for people who are recognized publicly for their achievements in different fields such as arts, sciences, education, and sports. While you can make a self-petition, a petition filed by your employer is likely to be approved.

However, you still need to prove your extraordinary abilities by demonstrating international or national acclaim by showing receipt of internationally recognized awards. If you do not meet these requirements, then you will have to provide the following evidence to the USCIS:

• Membership with bodies that demand outstanding achievement in your field.
• Published articles or books detailing your professionalism in your field.
• Performance of your work in a reputable company that led to an increase in sales.
• Display of your work at various exhibitions.

See the complete EB-1 eligibility criteria.

National Interest Waivers Petition

The evidence required for an NIW is not as clear as that of EB-1. So, for an NIW petition, the immigration steps will be as follows:

• Prove that the labor certification requirements and the job offer will be beneficial to the United States. You should also demonstrate that America will benefit from you if you continue working there even if there are other competent U.S. employees.
• Demonstrating that you are ready to pursue funding for your project or progress with your business plan while furthering your skills and education in the U.S.
• Demonstrate that your proposed work has national importance or substantial merit. For substantial merit, USCIS will consider findings that advance scientific knowledge; for national importance, the impact of your work will be looked at.

Bear in mind that, unlike NIW, self-petition green cards will require you to present a strong petition with evidence and documentation of your accolades and expertise in your field.

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Frequently Asked Questions

Below are some of the most frequently asked questions in regards to Eb-1 vs NIW differences and similarities.

Does the NIW allow for premium processing?

No, the NIW does not allow for premium processing which is one of the disadvantages over the EB-1 since that does allow premium processing.

What is a final merits determination? 

The burden of proof falls on the applicant to demonstrate that their meet the high-level of expertise outlined in the eligibility requirements. An immigration attorney will best be able to help you build a well-rouned case so that there is no concern from the immigration officer.

Is a job required for the EB-1 green card? 

For the extraordinary ability category, a job offer is not required. However, for outstanding professors/researchers and multinational managers/executives, a job offer and sponsorship from a U.S. employer are necessary.

What are the advantages of the EB-1 Green Card?

EB-1 Green Card holders can bypass the lengthy labor certification process and priority dates are usually current, leading to faster processing times compared to other employment-based categories.

What type of evidence is required to prove “extraordinary ability” in the arts for the EB-1 category?

Evidence may include a significant record of exhibitions, critical reviews, awards, recognition from experts or organizations, and international recognition for artistic achievements.

Can an entrepreneur with a successful startup apply for an EB-1 Green Card as an outstanding business person?

Yes, an entrepreneur with a successful startup can potentially qualify for the EB-1 Green Card if they can demonstrate their outstanding achievements, impact on the industry, and substantial contributions to the U.S. economy. It’s best to discuss more details about this with an immigration professional.

Can a researcher’s work on a niche scientific topic qualify for a National Interest Waiver if it has limited mainstream recognition?

Yes, as long as the research is of significant importance and the applicant can demonstrate the broader implications and potential benefits to the U.S., even niche scientific work can qualify for an NIW.

 

For those that are going with a sponsor, the employer usually does most of the work and pays for most of the fees. However, for the EB-1 and EB-2 NIW, those responsibilities will land on you as the sponsor and the beneficiary. In order to ensure that you are making the best decision for your case and filling out all the forms correctly, it’s almost always a good idea to have an immigration attorney handle your case.