Understanding Differences Between EB-1 and EB-2 NIW Visas

The United States offers various employment-based visas to attract skilled professionals worldwide, strengthening its economy and fostering innovation. Among these, the EB-1 (Employment-Based First Preference) and EB-2 NIW (Employment-Based Second Preference National Interest Waiver) visas are particularly significant. 

When comparing EB-1 vs. EB-2 NIW, these categories stand out as pathways for individuals with extraordinary abilities, advanced degrees, or exceptional achievements to work and reside in the U.S. without traditional employer sponsorship. These visas especially appeal to professionals in fields such as science, technology, healthcare, and the arts, where their expertise can make a substantial impact. 

By enabling access to global talent, EB-1 vs EB-2 NIW expands career opportunities for skilled individuals and reinforces the U.S.'s position as a global leader in research, development, and innovation.

What is an EB-1 Visa?

The EB-1 visa is a first-preference employment-based visa designed for highly accomplished individuals, known as "priority workers," to live and work in the United States. 

It encompasses three categories: 

1. Individuals with extraordinary ability in fields such as sciences, arts, education, business, or athletics who can demonstrate exceptional achievements with national or international acclaim (no job offer required).
2. Outstanding professors and researchers who are internationally recognized in their academic fields, possess at least three years of experience, and have a job offer from a U.S. institution.
3. Multinational executives and managers who have been employed in a senior role for at least one year by a qualifying organization outside the U.S. and are continuing in a similar capacity within the U.S. 

These categories offer a streamlined pathway for exceptional talent to contribute to the U.S. economy and innovation while advancing their careers.

Let us take a look at the different categories of EB-1 visas. 

Categories of EB-1 Visas

Understanding the categories of the EB-1 visa is crucial when evaluating EB-1 vs. EB-2 NIW options, as each category is tailored to specific types of priority workers.

1. EB-1-A: Individuals with Extraordinary Ability

This category is designed for individuals who have achieved sustained national or international acclaim in fields such as science, arts, education, business, or athletics. Applicants must provide compelling evidence of their extraordinary ability, such as major awards, published work, or significant leadership roles, to qualify. 

They must also demonstrate that their presence in the U.S. will contribute to advancing their field of expertise. Notably, this category allows for self-petition, enabling individuals to apply without requiring employer sponsorship providing greater flexibility and autonomy for exceptional talent to pursue their careers in the U.S.

2. EB-1-B: Outstanding Professors and Researchers

This category applies to academics who are internationally recognized for their outstanding achievements in a specific field of study. To qualify, applicants must have a minimum of three years of teaching or research experience and a job offer from a U.S. university or research institution that also employs at least 3 other full time researchers.

Additionally, they must provide evidence of significant contributions to their field, demonstrating their expertise and the value they bring to advancing knowledge and innovation in their area of specialization.

3. EB-1-C: Multinational Executives or Managers

This category is for executives or managers who have worked for a multinational company outside the U.S. for at least one year in the past three years and have transferred to a U.S. branch of the same company where they are continuing their executive or managerial function.

Applicants must demonstrate their leadership role and ability to contribute significantly to the company’s operations in the U.S.

The EB-1 visa’s broad scope and flexibility make it an attractive option for top-tier professionals seeking permanent residency in the United States.

Next, we are going to look at various EB-1 visa requirements. 

EB-1 Visa Requirements

This visa category is divided into three distinct subcategories, each with specific eligibility criteria:

Criteria for EB-1A Applicants

This subcategory is for individuals who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Applicants must provide evidence of a one-time achievement (such as a Pulitzer, Oscar, or Olympic Medal) or meet at least three of the following criteria:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
• Proof of membership in associations that require outstanding achievements of their members.
• Published material about the applicant in professional or major trade publications or other major media.
• Participation, either individually or on a panel, as a judge of the work of others in the same or allied field.
• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
• Authorship of scholarly articles in professional journals or other major media.
• Display of the applicant's work at artistic exhibitions or showcases.
• Performance in a leading or critical role in distinguished organizations.
• Commanding a high salary or other significantly high remuneration in relation to others in the field.
• Commercial successes in the performing arts.

Notably, EB-1A applicants do not require a specific job offer or labor certification and may self-petition. Additionally, as part of the evaluation, the Kazarian final merits test is applied to determine whether it is more likely than not that the individual is at the top of their field and is well-positioned to continue advancing it.

Criteria for EB-1-B Applicants

This subcategory targets professors and researchers who are internationally recognized for their outstanding academic achievements in a particular field. 

Eligibility criteria include the evidence of the following:

• At least three years of experience in teaching or research in the academic field.
• A tenure or tenure-track teaching position, a comparable research position at a university, or other institution of higher education. Applicants may also be affiliated with a university or institution of higher learning, such as independent but affiliated research laboratories or organizations.

Applicants must also provide evidence of at least two of the following:

• Receipt of major prizes or awards for outstanding achievement.
• Membership in associations that require outstanding achievements.
• Published material in professional publications written by others about the applicant's work.
• Participation as a judge of the work of others in the same or allied academic field.
• Original scientific or scholarly research contributions.
• Authorship of scholarly books or articles in scholarly journals with international circulation.

A permanent job offer from a prospective U.S. employer is required for EB-1B applicants.

Criteria for EB-1-C Applicants

This subcategory is designed for executives or managers who have been employed for at least one year in the past three years by a foreign affiliate, parent, subsidiary, or branch of a U.S. employer and seek to continue service to that employer in a managerial or executive capacity. Eligibility requirements include:

• Employment outside the U.S. in a managerial or executive capacity for at least one year in the three years preceding the petition.
• A job offer from a U.S. employer to work in a managerial or executive capacity.
• A qualifying relationship between the U.S. and foreign employers (e.g., affiliate, parent, subsidiary, or branch).

The U.S. employer must have been doing business for at least one year before filing the petition.

Each EB-1 subcategory has specific documentation requirements to substantiate the applicant's qualifications and achievements, an important distinction to consider when weighing EB-1 vs EB-2 NIW eligibility. Meeting these criteria is essential for a successful petition under the EB-1 visa category.

Now that we know everything about the EB-1 visa, let us take a quick look at the EB-2 NIW visa. 

What is an EB-2 NIW Visa?

The EB-2 NIW visa is a second-preference employment-based immigrant visa category in the United States, designed for professionals who either hold advanced degrees or possess exceptional abilities in the sciences, arts, or business. This visa facilitates the entry of highly skilled individuals whose expertise is deemed beneficial to the U.S. economy, cultural, or educational interests. 

Advanced Degree Professionals

To qualify under the EB-2 NIW category as an advanced degree professional, the applicant must have:

• A U.S. master's degree or higher or a foreign equivalent degree.
• Alternatively, a U.S. bachelor's degree or its foreign equivalent, plus at least five years of progressive, post-baccalaureate work experience in the relevant field.

The position being offered must require at least such a degree for entry into the profession.

Individuals with Exceptional Ability

Applicants may also qualify if they can demonstrate exceptional ability in the sciences, arts, or business. "Exceptional ability" refers to a degree of expertise significantly above that ordinarily encountered in the respective field. Evidence of exceptional ability may include:

• Official academic records showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
• Letters documenting at least ten years of full-time experience in the occupation.
• A license to practice the profession or certification for the profession or occupation.
• Evidence of a salary or other remuneration that demonstrates exceptional ability.
• Membership in professional associations.
• Recognition for achievements and significant contributions to the industry or field by peers, government entities, and professional or business organizations.

National Interest Waiver (NIW)

Within the EB-2 NIW category, certain applicants can request a National Interest Waiver (NIW), which waives the standard requirement of a specific job offer and the labor certification process. This waiver is typically granted to individuals whose work is deemed to have substantial merit and national importance. To qualify for an NIW, applicants must demonstrate:

1. Their proposed endeavor has both substantial merit and national importance.
2. They are well-positioned to advance the proposed endeavor.
3. It would benefit the United States to waive the job offer requirements and the labor certification.

The NIW is particularly advantageous for entrepreneurs, researchers, and professionals whose work benefits the nation, as it allows them to self-petition without employer sponsorship.

In the next section, we will learn about EB-2 NIW visa requirements in detail. 

EB-2 NIW Visa Requirements

Let us take a look at the basic EB-2 NIW requirements: 

General Requirements

1. Advanced degree or equivalent (bachelor's degree + 5 years of experience).

Applicants must have a U.S. advanced degree (master’s or higher) or its foreign equivalent. Alternatively, a bachelor’s degree followed by at least five years of progressive, post-baccalaureate work experience in the relevant field is considered equivalent.

Documentation:

• Official academic transcripts, degrees, or certificates.
• Letters from employers detailing work experience, responsibilities, and progression in the field.

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2. Evidence of exceptional ability in the sciences, arts, or business.

Exceptional ability refers to a degree of expertise significantly above that ordinarily encountered in sciences, arts, or business.

• Applicants must provide evidence meeting at least three of the following:
• Official academic records relating to their area of expertise.
• Documentation of at least 10 years of full-time experience in their occupation.
• Professional licenses or certifications.
• Evidence of commanding a high salary or remuneration compared to others in the field.
• Membership in professional associations that demand outstanding achievement.
• Recognition for achievements by peers, organizations, or government entities.

Demonstrating exceptional ability ensures that the applicant has a proven record of significant contributions to their field.

EB-2 NIW Requirements (National Interest Waiver)

1. Proof that the applicant’s work is in the national interest.

Criteria

The applicant’s work must have substantial merit and national importance. Fields often considered include:

• Scientific research that addresses critical national or global challenges (e.g., healthcare advancements, environmental sustainability).
• Work in technology, engineering, or education that drives innovation or contributes to long-term economic growth, particularly through advancements rather than job creation alone.
• Contributions to the arts or humanities that have broad societal impacts.

Additionally, the applicant must demonstrate that they are uniquely qualified or positioned to make meaningful progress in the identified nationally important field.

Evidence

• Detailed project descriptions highlighting the national relevance of the applicant’s work.
• Letters of support or expert opinions confirming the importance and potential impact of the applicant’s contributions.
• Impact metrics, such as citations, patents, awards, or measurable outcomes that validate the applicant’s ability to advance the field.

2. Waiver of the job offer requirement under certain conditions.

Criteria: Applicants must demonstrate that waiving the job offer requirement would benefit the U.S. more than requiring a specific employer sponsorship. 

This includes:

• The applicant’s role is integral to their field of work.
• The inability to achieve the same results through traditional job sponsorship.

Key Supporting Evidence

• A well-documented supporting statement provided by an expert, mentor, or organization familiar with the applicant’s work, explaining why the waiver aligns with national interests.
• Letters from industry experts should corroborate the applicant’s qualifications and impact.
• Examples of independent contributions or entrepreneurial endeavors that advance national objectives.

An applicant should be aware of the processing time for EB-1 and EB-2 NIW visas before choosing the right one. 

Processing Time For EB-1 and EB-2 NIW Visas

Overview of standard processing times.

• EB-1 Visa: The processing time for an EB-1 visa typically ranges from 8 to 23 months.
• EB-2 NIW Visa: The overall EB-2 NIW visa processing time is 45 business days. But, it depends on factors such as the time taken for I-140 processing and visa availability. 

Factors influencing processing speed:

• EB-1 Premium Processing Options

USCIS offers premium processing for certain EB-1 categories, allowing petitioners to expedite the processing of Form I-140, Immigrant Petition for Alien Workers, for an additional fee. This service guarantees processing within 15 business days.

• Regional Variations in USCIS Processing

Processing times can vary depending on the workload and efficiency of the specific USCIS service center handling the petition. Some centers may have longer processing times due to higher volumes of applications.

• Impact of Priority Date Backlogs

Both EB-1 and EB-2 NIW categories are subject to annual numerical limits, leading to potential backlogs. The EB-2 NIW category often experiences longer waiting times, especially for applicants from countries with high demand, such as India and China. This results in longer waits for visa numbers to become available, directly affecting overall processing times.

Now that we know about the processing time let us look at the cost of both EB-1 and EB-2 NIW visas. 

Cost of EB-1 and EB-2 NIW Visas

The costs associated with the EB-1 and EB-2 National Interest Waiver (NIW) visa processes encompass various filing fees and potential additional expenses. 

Below is a detailed comparison of these costs:

Filing fees for EB-1 vs. EB-2 NIW

I-140 petition costs

• EB-1 Visa: The filing fee for Form I-140, Immigrant Petition for Alien Workers, is $715. For self-petitioned I-140s, there is an additional mandatory $300 asylum program fee, bringing the total cost to $1,015.
• EB-2 NIW Visa: Similarly, the filing fee for Form I-140 under the EB-2 NIW category is $715. Self-petitioned applications also incur the $300 asylum program fee, making the total cost $1,015.

Premium processing fees (EB-1 or EB-2 NIW NIW)

• EB-1 Visa: Premium processing is available for certain EB-1 categories, allowing for expedited processing within 15 business days. The fee for this service is $2,805.
• EB-2 NIW Visa: As of January 30, 2023, premium processing became available for EB-2 NIW petitions, with a processing timeframe of 45 business days and a fee of $2,500.

Additional costs

• Labor Certification costs (specific to EB-2 NIW PERM).
  • EB-1 Visa: Labor certification is not required for EB-1 petitions.
  • EB-2 NIW Visa: The National Interest Waiver exempts applicants from the labor certification requirement, eliminating associated costs.

Adjustment of Status or Consular Processing Fees

• Form I-485 (Adjustment of Status): The filing fee is $1,140, with an additional biometrics fee of $85, totaling $1,225.

Associated Costs:

• Form I-765 (Application for Employment Authorization): This form is often filed alongside Form I-485. The filing fee is typically included when filed concurrently with Form I-485, but applicants should verify the latest fee exemptions.
• Form I-131 (Application for Travel Document): This form is also commonly filed alongside Form I-485 for applicants seeking advance parole to travel while their adjustment application is pending. Like Form I-765, the filing fee is generally waived when submitted concurrently with Form I-485.

• DS-260 (Consular Processing): The fee for this form is $325 per person.

Additional Considerations:
Applicants choosing consular processing should be aware that:

• There may be long waits at the National Visa Center (NVC) before the case is forwarded to the appropriate U.S. consulate or embassy.
• A consular interview is required, during which applicants must demonstrate eligibility for the visa.
• If approved, the visa is stamped into the applicant’s passport, allowing entry into the United States.

Let us now take a look at the differences between EB-1 and EB-2 NIW visas. 

Key Differences Between EB-1 and EB-2 NIW Visas

Conclusion

Choosing between the EB-1 and EB-2 NIW visa categories requires thoroughly understanding your qualifications, career trajectory, and immigration goals. While the decision can be complex, leveraging expert tools and resources can simplify the process and increase your chances of success.

For a seamless and efficient immigration experience, consider using Alma. Alma's team of attorneys provide personalized guidance, helping you navigate the complexities of U.S. immigration laws. From evaluating your eligibility for EB-1 or EB-2 NIW to optimizing your application strategy, Alma’s team will help streamline the process and empower you to achieve your immigration goals with confidence.

Schedule a consultation with Alma today!

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