Did you know that the green card application is actually the second step of the green card process? Before you can file a green card application (also referred to as a permanent resident application, Form I-485, and adjustment of status), you must file an immigrant petition.
There are several types of immigrant petitions, but today we're going to discuss two of the most common employment-based immigrant petitions: EB-1 and EB-2.
Commonalities Between the EB-1 Visa and EB-2 Visa
The EB-1 and EB-2 are employment-based immigrant visas. In other words, EB-1 and EB-2 qualify foreign nationals for a U.S. green card based on their professional accomplishments.
EB-1 and EB-2 petitions are both typically prepared by a business immigration team, printed out on paper, and submitted to U.S. Citizenship and Immigration Services (USCIS) by mail. Both petitions often include hundreds of pages, containing the following:
- Form I-140, Immigrant Petition for Alien Workers
- Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (if prepared by an immigration attorney)
- Form I-907, Request for Premium Processing Service (if filed with premium processing)
- The applicant's immigration documentation (passport, previous U.S. visas, etc.)
- Supporting documentation (varies greatly between EB-1 and EB-2)
The green card application process is identical for both EB-1 and EB-2 applicants. If the applicant is current (what does current mean? Read here), they can file their green card application concurrently or after the approval of their immigration petition. Either way, EB-1 and EB-2 applicants file identical green card applications and are subject to the same green card processing times even though the time to complete the process varies between immigrant visas.
The EB-1 Visa
EB-1 stands for employment-based, first-preference visa.
As the "first preference" visa for business immigration, the EB-1 tends to be the most expedited path to a green card. EB-1s also waive the lengthy PERM labor certification process, saving applicants around a year. The downside? It isn't easy to qualify for most EB-1 subcategories.
Within the broad EB-1 category are three EB-1 subcategories, each with unique criteria and processing times.
EB-1A for Aliens of Extraordinary Ability
The first subcategory is the EB-1A for Aliens of Extraordinary Ability. The EB-1A provides a path to permanent residence for foreign nationals with extraordinary talents in the sciences, arts, education, business, and athletics.
The EB-1A is often associated with the O-1A work visa since they share similar criteria. However, they have significant differences. Namely, the O-1A is meant for individuals at the 10% of their field, while the EB-1A is reserved for individuals at the top 1% of their field.
The EB-1A is a popular choice for individuals from China and India because it generally provides a faster path to a green card for nationals of these countries. The EB-1A is also favored because it can be self-petitioned (filed without a sponsoring company) and qualifies for 15-day premium processing.
You do not need a job offer, a U.S. employer, or even a degree of any kind to qualify for the EB-1A. Instead, you must satisfy three or more EB-1A criteria (or submit evidence showing receipt of a major, internationally recognized prize or award, like a Nobel Prize).
It's important to note that meeting three or more EB-1A criteria is technically not enough to get an EB-1A. When reviewing your EB-1A petition, a USCIS officer can deny your EB-1A even if you meet all the criteria if they do not believe that you have "sustained national or international acclaim" in your field.
EB-1A example: Georgio is a Techstars startup founder who submitted an EB-1A petition with evidence for five EB-1A criteria in January 2023. Since he filed with premium processing, he received a response from USCIS in less than two weeks. Unfortunately, USCIS issued a Request for Additional Evidence (RFE) for his case. Although the RFE slows down the process, he works with a competent immigration team to respond to the RFE and receives an EB-1A approval in less than two months. After receiving the EB-1A approval, Georgio goes back to his immigration team and they prepare his I-485 green card application. Next step, green card!
EB-1B for Outstanding Researchers, Academics, and Professors
The EB-1B is reserved for outstanding researchers, academics, and professors. The EB-1B is often pursued by academics that came to the U.S. as international students, but many other foreign nationals qualify.
Like the EB-1A, the EB-1B qualifies for 15-day premium processing. Also like the EB-1A, EB-1B applicants are subject to a “totality test” in which a USCIS officer assesses whether the applicant has "sustained national or international acclaim" in their field.
Foreign nationals can qualify for the EB-1B by submitting evidence for at least two eligibility criteria:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the noncitizen's work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
The EB-1B criteria look similar to the O-1A criteria, however, the EB-1B has a higher standard as compared to the O-1A.
EB-1B example: Lucia is a data scientist who recently finished her Master's degree. Now, she is working for a U.S. company on OPT, but needs a more permanent immigration solution. She qualifies for the EB-1B by meeting three criteria: she has invented original scientific contributions, has a strong publication and citation record, and has served as a judge at technical conferences. She concurrently files her EB-1B petition and green card application. Her EB-1B is approved within a few months, and her green card is approved within a year.
EB-1C for Multinational Managers and Executives
The EB-1C allows executives and managers at multinational companies to transfer to a U.S. office permanently.
The EB-1C is a common path for L-1A visa holders, but foreign nationals without a U.S. visa also often qualify by meeting the requirements. USCIS recently introduced premium processing for EB-1Cs, which speeds up the overall EB-1C process.
Unlike the EB-1A and EB-1C, the requirements for the EB-1C are not very flexible. Instead of meeting a selection of criteria, the EB-1C has very specific requirements for applicants (and their employers).
To qualify, you must have worked as an executive or manager in your company's foreign subsidiary for at least one year in the past three years, and you must have an offer for an executive or managerial role with the same company in the U.S.
EB-1C example: Aditya has been a Program Manager at his company in Indonesia for three years, and is now working at the same company in the U.S. After one year in the U.S., Aditya applies for the EB-1C and concurrently files his green card application. He chooses to file without premium processing, and receives an EB-1C approval in one year, and his green card approval follows shortly.
The EB-2 Visa
EB-2 stands for employment based, second preference visa. The EB-2 category is designated for people with advanced degrees or exceptional ability in their fields. In general, it tends to be easier for immigrants to qualify for the EB-2 compared to the EB-1 since it is the "second preference" visa.
There are two EB-2 subcategories: the EB-2 PERM and the EB-2 National Interest Waiver. To qualify for either category, you must satisfy the EB-2 advanced degree or exceptional ability requirement.
Qualifying for the PERM is fairly simple. You must satisfy the EB-2 advanced degree or exceptional ability requirement, and you must have a job offer from a U.S. company.
The disadvantage of the EB-2 PERM is that you (and your employer) must go through the lengthy PERM labor certification process. The purpose of the PERM process is to test the U.S. labor market for qualified U.S. workers, which can take one year to complete.
You can only file the EB-2 petition after the PERM has been approved, meaning that an entire year is added to the overall EB-2 PERM process.
EB-2 PERM example: Nayib has been working in the U.S. on an H-1B visa for the past three years and recently got his H-1B renewed. Now his employer would like to sponsor his green card. If his employer begins the PERM process now, he can expect to file his EB-2 and green card application in one year. After that, he will have to wait about another year for the EB-2 and green card approval.
EB-2 National Interest Waiver
The EB-2 NIW allows you to "waive" the lengthy PERM process. EB-2 NIW applicants must meet the advanced degree or exceptional ability requirement but must also satisfy NIW requirements.
The NIW requirements are broken into three legal prongs, including:
Prong 1: The applicant's proposed endeavor has substantial merit and national importance
Prong 2: The applicant is well-positioned to advance the proposed endeavor
Prong 3: On balance, it would be beneficial to the United States to waive the requirements of the PERM labor certification
Learn more about the three prongs of the NIW and how to satisfy them.
The EB-2 NIW can be self-petitioned, meaning that you do not need a U.S. job offer, employer, or company sponsor to file an EB-2 NIW petition.
Another advantage? USCIS recently started implementing 45-day premium processing for EB-2 NIW petitions.
EB-2 NIW example: Rosita is a startup founder developing AI technologies that make airport security more efficient. Rosita's proposed work and background satisfy each of the three NIW prongs, and she qualifies for the EB-2 with her U.S. Master's degree. She files her EB-2 NIW and green card application concurrently and receives her green card in a year.
Key Distinctions Between the EB-1 and the EB-2
Now that we've gone over the general overview of EB-1 versus EB-2, we can dive deeper into the differences. A few key distinctions for comparison:
- Different standards: EB-1A "Extraordinary Ability" and EB-1B "Outstanding Researcher" have a higher threshold than EB-2 NIW. USCIS takes a two-step approach in evaluating EB-1A and EB-1B petitions. Even if you meet all the eligibility requirements in the chart above, USCIS performs a "totality test" for EB-1A and EB-1B. With the totality test, USCIS reviews all the evidence together and decides whether, taking everything into account, you have risen to the level of achievement where you should be classified as impressive enough for the EB-1A and EB-1B classification.The EB-2 NIW requirements are less arduous than the EB-1A and EB-1B, making it a more accessible option for many people.
- Visa Bulletin: Each month, the government releases the Visa Bulletin that informs people if they can file the green card application based on their priority date (their place in line). Your birth country may impact whether you want to proceed with an EB-1 or EB-2. For example, if you were born in Italy and are currently in the U.S., you could apply for a green card right away under either EB-1 or EB-2. On the other hand, if you were born in India, the EB-1 would allow you to have a much shorter wait before applying for a green card than the EB-2.
- No PERM: All three subcategories of EB-1 plus EB-2 NIW allow you to skip the lengthy PERM process of testing the U.S. labor market for qualified U.S. workers.
- Job offer requirement: The EB-1A and EB-2 NIW both allow you to self-petition, meaning that you do not need a sponsoring U.S. employer or job offer. On the other hand, you must have a U.S. job offer for EB-1B, EB-1C, and PERM-based EB-2.
Choose the best immigration path
It's essential to review the requirements for each category and see which option better matches your experience and goals. Speak with a Legalpad immigration expert to determine which green card path is right for you.