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O-1 vs EB-2 NIW for Startup Founders and International Students

The O-1A work visa and the EB-2 NIW green card petition are two very different paths to working in the United States. What they have in common is their popularity amongst startup founders and recently graduated international students. So which path is right for you?

O-1 vs EB-2 NIW

General Information: O-1 Visa vs EB-2 NIW

As a foreign national you need proper work authorization to work in the U.S., even for a foreign company. There are a few different types of work authorization; the two most common are green cards and work visas. The O-1 is a work visa, and the EB-2 NIW is the first step to getting a green card. 

Which Path is Right For You?

Here are some questions to consider as you explore the question of O-1 vs EB-2 NIW:

    1. Do you already have U.S. work authorization? If not, you may want to consider applying for the O-1 now since it will provide you with work authorization more quickly. However, if you are outside the U.S. and not in a rush to get to the U.S. and work, you may consider the EB-2 NIW.
    2. Is your U.S. work authorization about to expire? If you are working in the U.S. but your work authorization will expire sometime in the next year, the O-1 path may make the most sense for your situation. If you already have work authorization that is valid for the next year or so, it may be a good time to apply for the EB-2 NIW now.
  • Were you born in Mainland China or India? If you were born in Mainland China or India, the overall process of getting your green card will take longer than if you were born in another country. Because of this, you may consider filing both the O-1 and EB-2 NIW at the same time. The O-1 will provide you with immediate work authorization and your priority date will be locked in when you filed the EB-2 NIW. 
  • Do you want to work in the U.S. temporarily or become a U.S. permanent resident? The O-1 is a nonimmigrant visa intended for temporary work in the U.S. whereas the EB-2 NIW puts you on a path to becoming a permanent resident, and eventually a citizen.
  • Do you qualify for the O-1, EB-2 NIW, or both? Consider your qualifications, and how you can strengthen your O-1 and EB-2 NIW profiles. 

Benefits of the O-1 visa:

  • Ability to get work authorization very quickly with USCIS’ 15-day premium processing for O-1 visas
  • U.S. work authorization for three years, with indefinite extensions
  • A strong likelihood that your future extension will be approved because of USCIS’ deference policy to prior approvals

Limitations of the O-1 visa:

  • The O-1’s dependent visa does not provide work authorization for spouses
  • Although it is easy to renew the O-1 visa, you still have to pay visa renewal fees every three years, which can definitely add up
  • Each O-1 visa is tied to a specific employer. If you decide to leave your employer, you will have to file for a new visa

Benefits of the EB-2 NIW:

  • The EB-2 NIW puts you in line to get your green card, which enables you to work and live permanently in the U.S.
  • USCIS is rolling out 45-day premium processing for EB-2 NIWs throughout 2022
  • Most applicants can concurrently file their green card application, an application for advance parole (travel authorization), and an employment authorization document (EAD) application at the same time as they file their EB-2 NIW
  • EB-2 NIWs can be self-petitioned, meaning that the applicant is not required to have a U.S. job offer or to have a U.S. company sponsor their application 
  • Dependents (spouses and unmarried children under 21) qualify for the same advance parole, EAD, and green card benefits as the primary applicant 

Limitations of the EB-2 NIW:

  • The EB-2 NIW by itself does not immediately provide you with work authorization. If you can file your green card application at the same time as your EB-2 NIW, you may be able to get work authorization through an EAD around six months after filing (but it could be longer)
  • Individuals born in India or Mainland China should be prepared for a lengthy wait, as it could take years from the time your EB-2 NIW is filed to the time you receive work authorization through an EAD or green card

O-1A qualifications:

The O-1A visa is a work visa for individuals at the top of their field who qualify either by winning a significant award such as a Nobel Prize, or by meeting at least three of the following criteria:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field which require outstanding achievements
  • Published material in professional or major trade publications, newspapers, or other major media about you or your work
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field
  • A high salary or other remuneration
  • Participation on a panel, or individually, as a judge of the work of others in the field
  • Employment in a critical or essential capacity for organizations that have a distinguished reputation

If you are not qualified for the O-1 visa yet, you can work on strengthening your qualifications.

EB-2 NIW qualifications:

The EB-2 National Interest Waiver (NIW) is meant for individuals whose work has national importance and substantial merit. The EB-2 NIW qualifications include:

You must have either an Advanced Degree (U.S. Master’s or foreign equivalent, or U.S. Bachelor’s or foreign equivalent plus five years of post-Bachelor’s work experience) or meet three of six “Exceptional Ability” criteria.

In addition, you must qualify for the National Interest Waiver by showing that you meet three criteria:

  • Your proposed work in the U.S. has National Importance and Substantial Merit
  • You are well-positioned to succeed
  • It is beneficial for the U.S. to waive the PERM labor certification requirement

In other articles, we outline how postgraduate international students and startup founders tend to meet these EB-2 NIW qualifications.

Both the O-1 and EB-2 NIW can be excellent choices. If you aren’t sure which option is best for you, contact our team to discuss

About the author:

Annie Blay

Content Marketing Specialist

Before joining the marketing team, Annie helped over 60 Legalpad clients navigate U.S. immigration on the client services team.