Recently, our firm received many NIW (National Interest Waiver) cases. The reason for this is that, as we all noticed, the EB-2 cut-off dates for Chinese Mainland nationals and Indian nationals kept moving forward faster and faster over the past few months. Incredibly, the cutoff date moved forward one year from January 1st, 2009 to January 1st, 2010 in the February 2012 Employment Based Visa Bulletin alone. The EB-2 cut-off dates for Chinese Mainland nationals and Indian nationals moved forward again in the March 2012 Visa Bulletin, this time by four months.

NIW is a special category of EB-2 that does not require any employer sponsorship, and thus avoids the lengthy Labor Certificate application (known as PERM). Thus, it is a popular option for people with advanced degrees and a certain level of academic accomplishment. Of course, when we talk about academic accomplishment, the EB-1A Petition for Alien of Extraordinary Ability often comes to the front of our minds.  Similarly to the NIW, the EB-1A also does not require employer sponsorship or a Labor Certificate application. This article provides guidelines for those people who are confused about which option to pursue.

The differences between NIW and EB-1A:

As employment-based immigration, first preference, EB-1A has higher standards than NIW. You can click on the links below to view detailed requirements for both categories:

Requirements for EB-1A:
http://www.hooyou.com/eb-1/requirementaea.html

Requirements for NIW:
http://www.hooyou.com/niw/niw_requirements.html

Since these requirements and standards are quite subjective, based on our statistics, we conduct a preliminary evaluation of a scholar’s eligibility for EB-1A or NIW, taking into account his/her number of journal papers, independent citations and journal reviews.

According to the law, in order to qualify for a National Interest Waiver (NIW), an applicant must satisfy the requirements of this three-prong test:

• The beneficiary must seek to work in an area of substantial intrinsic merit;
• The beneficiary’s work must have a benefit which will be national in scope; and,
• The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications/The national interest would be adversely affected if a labor certification were required for the beneficiary.

Based on our experience, if the NIW petitioner has more than 5 journal publications and more than 30 independent citations, he/she will have a better chance at approval.
The requirements and standards for EB-1A are even higher. In the absence of an internationally recognized award such as a Nobel Prize or Academy Awards, one can establish oneself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
• Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
• Published material in professional/major trade publications or major media about the alien and relating to the alien's work field.
• Participation as a judge (individually or as a part of a panel) evaluating the work of others.
• Original scientific, scholarly, or artistic contributions of major significance.
• Authorship of scholarly articles in professional journals or other major media.
• Artistic exhibitions/shows.
• Leading role within an organization/establishment with a distinguished reputation.
• High salary/compensation for services in comparison to others.
• Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures. The alien must also show that the alien's admittance into the United States will substantially benefit the United States in the future.

Based on our experience, if the EB-1A petitioner has more than 10 journal publications, more than 70 independent citations and more than 10 journal reviews, he/she will have a better chance at approval. Of course, this is just a preliminary evaluation. Not everyone who achieves these specific accomplishments and numbers will necessarily receive approval. On the contrary, due to the possibility of attaining other accomplishments, people who have not yet achieved these numbers still stand a chance at gaining approval. In fact, we have successfully helped many such petitioners get their cases approved.

From another perspective, some EB-1A petitioners have high achievements in areas such as art. Although they generally do not have any journal paper or citation, they can still get EB-1A approval if they meet the standards outlined above. We have successfully helped such people, for example martial art coaches and artists, get their EB-1As approved.

Another difference between NIW and EB-1A is the processing time. For EB-1A, there is the option to choose Premium Processing, for an extra fee of $1,225, which means that the petitioner can receive a decision within 15 days. Based on last month’s analysis of our approval data, for EB-1A cases, the longest amount of time it took to approve an application was 396 days, while the shortest was 12 days. The average processing time is about 5 months. For NIW cases, the longest amount of time it took to approve an application was 503 days, while the shortest was 15 days. The average processing time is about 6 months. That is to say, the average processing time for EB-1A and NIW does not differ much. However, with EB-1A we can choose Premium Processing at any point while the case is pending, whereas that option is not available for NIW cases.

The choice between NIW and EB-1A:

First of all, there is no law restricting a person from applying for multiple employment-based immigration petitions at the same time. Thus, it is feasible to apply for both NIW and EB-1A at the same time, if necessary. In fact, we do receive some clients who adopt this strategy. Mainly, an NIW and EB-1A bundle will benefit the petitioner in several aspects. Firstly, the evidentiary documents required for the NIW and EB-1A are very similar, including recommendation letters. It is the attorney’s job to organize and draft petition letters according to the different standards for NIW and EB-1A. Secondly, for those petitioners whose EB-1A petition is challenging, filing NIW at the same time will give him/her a relatively earlier priority date. Thus, even if the EB-1A petition is denied, he/she can still receive a green card faster than if he/she were to file NIW only after the denial of the EB-1A.

However, filing NIW and EB-1A at the same time does involve more attorney fees and filing fees. Therefore, if the petitioner has very high credentials qualifying them for EB-1A, there is no need for him/her to apply for NIW at the same time. Conversely, if the EB-1A is an extremely challenging prospect for him/her, he/she should bypass EB-1A and only apply for NIW.

Our suggestion:

Those who have received their Ph.D. degrees and have also achieved many exceptional accomplishments, such as discussed above—more than 10 journal papers, more than 70 independent citations, more than 10 journal reviews or membership of a journals’ review panel, etc—will have a good chance for getting their EB-1A approved. Thus, we suggest that they apply only for EB-1A.

For those who are still pursuing their Ph.D. degrees, who have just received their Ph.D., or who only have a Master’s degree, and who do not yet have many academic accomplishments—for example, only  3 journal papers, around 30 independent citations, etc.–it will be very challenging to apply successfully for EB-1A. Therefore, we suggest that they concentrate on NIW only, and help them focus on their more useful credentials.

Now, after our evaluation, we find that some people have significantly higher credentials than are necessary for NIW, but that they do not quite satisfy the requirements for EB-1A. For example, he/she satisfies only 2 standards, or although he/she satisfies 3 standards, he/she cannot make a strong claim that he/she is at the top of his/her area. These issues can make EB-1A application somewhat challenging. In fact, many petitioners will encounter such dilemmas. We give two suggestions for such cases, based on different scenarios:

• If the petitioner can significantly enhance his/her credentials in a relatively short period of time, for example because some original work will soon be published, or they may soon contribute journal review, etc., we suggest that the petitioner postpone their immigration petition for a bit. Then, after those new credentials are added in, he/she should stand a good chance at EB-1A approval.
• If, for a relatively long time in the foreseeable future, it would be difficult for the petitioner to achieve any new breakthroughs to strengthen their claim for EB-1A, but their NIW claim is already strong enough, we suggest that they file NIW and EB-1A at the same time. That way, he/she can receive a relatively earlier priority date, even if their EB-1A petition is denied.

Additionally, besides taking into account statistics for success rates, since I-485 Adjustment of Status can be filed concurrently with an EB-1A, the EB-1A petitioner can receive working permission (EAD) faster than a NIW petitioner. Therefore, when deciding between EB-1A and NIW application, this fact should also be taken into consideration.

Significantly, if a petitioner’s working permission status is reaching its end, such as H-1B status reaching the 6th year, in order to avoid interrupting their job, a petitioner should give priority consideration to EB-1A if he/she can somehow meet the requirements. This is because he/she can then get working permission earlier, by concurrently filing I-485 and EB-1A.

Further, if the petitioner or the petitioner’s spouse receives a very good job offer, but, due to the exhaustion of H-1B cap or for other reasons the employer cannot file an H-1B for him/her, and the petitioner can satisfy the EB-1A’s requirements, he/she should consider EB-1A as the first choice, in order to get working permission earlier and be able to take on the new employment.

Similarly, if the petitioner and the petitioner’s spouse are working in different cities, successfully applying for concurrent EB-1A and working permission could enable them to choose a new employer and reunite.

Finally, in the latter scenario—applying for EB-1A and I-485 concurrently—there will be certain immigration benefits for a petitioner’s minor child. As we know, a spouse and an unmarried child under the age of 21 can be treated as derivative beneficiaries and thus file their I-485 with the primary applicant. If a child is approaching 21 years of age, however, for example if they are already 20 years old, filing EB-1A and I-485 concurrently can avoid the aged-out problem, which can disqualify a child from derivative immigration benefits. In such a case, the petitioner should consider EB-1A as their first choice in order to “lock” in the age of their child.

Due to the fact that EB-1A provides plenty of advantages, while on the contrary, in the past EB-2 involved a long wait time (about four years) until the visa became available, many people have ignored the NIW option. However, since 2008 we have been suggesting to clients that they choose NIWs, based on speculation that someday the EB-2 cut-off date would move faster. We received 402 NIW approvals in 2008, 430 in 2009, 223 in 2010 and 286 in 2011. Nowadays, the EB-1A examination has become stricter than ever before, but the EB-2 cut-off date has been moving ahead faster. Thus, in turn the NIW is becoming more popular. If a qualified petitioner can receive a relatively earlier priority date through NIW, this is the sensible route to choose, since based on our speculation, the waiting period for EB-2 visa availability will range around one and a half years for several years to come.

As discussed above, every case has unique circumstances. Therefore, we suggest that those who still linger between choosing NIW or EB-1A contact us through freeevaluation@hooyou.com. One of our experienced attorneys will provide you with professional and sincere advice based on your specific conditions.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, PC.

Silicon Valley • New York • Los Angeles • Chicago • Houston • Austin

Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
website:	http://www.hooyou.com

 

(02/14/2012)