To file the National Interest Waiver, Outstanding Researcher or Extraordinary Ability Petition, That is the Question

Recently, a European foreign national contacted my office about the pros and cons of filing an EB-1B outstanding researcher petition versus an EB-2 national interest waiver. He is working at a prestigious academic and research institution in the US and would have a strong EB-1B outstanding researcher or EB-2 national interest waiver case. Although he has plenty of time remaining in H-1B status, he has other personal reasons for wanting to obtain legal permanent residency sooner than later. As discussed below, although the EB-2 national interest waiver would be relatively easier to get approved, the EB-1B outstanding researcher is more practical for his case.

Foreign nationals who seek legal permanent residency based on their outstanding ability or significant track record, and who are subject to the worldwide chargeability category for immigrant visas (meaning that they were not born in India or China and do not have spouses who were not born in these countries), have several relatively quicker options outside the PERM labor certification application. This is because the priority date for the EB-1A extraordinary ability, EB-1B outstanding researcher/professor and EB-2 national interest waiver immigrant visa categories are usually current; i.e. do not normally backlog. In the EB-1 category, foreign nationals may file their Form I-485 application to adjust status simultaneously with the Form I-140 immigrant visa petition if a visa number is available. Alternatively, they may premium process their Form I-140, and then if approved, file the Form I-485 application to adjust status. For the EB-2 national interest waiver, they must file the I-140 via traditional processing, and if is approved, then file the I-485.

The obvious advantage to filing an EB-1A extraordinary ability or EB-1B outstanding researcher/professor I-140 petition is the ability to file via premium processing (for an extra $1,225) to obtain an approval far more quickly. Premium processing requires USCIS to make a decision in as little as 15 calendar days, and if a request for evidence is issued, then an additional 15 calendar days after the response is filed. There is no premium processing for the EB-2 national interest waiver, which means that it moves at a relative snail’s pace, with the process taking approximately six to 12 months. However, the EB-1A extraordinary ability and EB-1B outstanding researcher categories have more stringent requirements than the EB-2 national interest waiver. If there is no urgency for the foreign national to obtain green card status (legal permanent residency), such as if the foreign national still has several years remaining in H-1B status, then the EB-2 national interest waiver may be preferable because of its different criteria, which many deem as less challenging than the EB-1A extraordinary ability or EB-1B outstanding researcher categories.

The EB-1A extraordinary ability visa petition is the most challenging. One must show extraordinary ability in the sciences, arts, education, business or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. One must have a level of expertise indicating that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.” In other words, the worker should be the cream of the crop. Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize. Other lesser awards might also qualify, but would have to rise to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the foreign national has not received a single high-ranking, distinguished, internationally-recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
2. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
3. Published material about the alien in professional or major trade publications or major media relating to the alien’s work in his field;
4. Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
5. Evidence of the alien’s original contributions of major significance to the field;
6. Authorship of scholarly articles in the field, in professional journals or other major media;
7. Display of the alien’s work at artistic exhibitions or showcases;
8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
9. Evidence that the alien commands high remuneration in relation to others in the field; and
10. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

The EB-1B outstanding researcher visa petition has a less exacting standard. In order to qualify as an “outstanding researcher,” one must demonstrate international recognition as outstanding in a specific area. USCIS requires the showing of at least two of the following in order to satisfy this test:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien’s work in the academic field;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field (primary evidence in the form of recommendation letters); or
6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.

Also, to qualify as an outstanding researcher, the alien must document at least three years of outstanding research experience in his or her field.

The EB-2 national interest waiver has the most lenient criteria of the three special immigrant visa petitions, in light of the recent case of Matter of Dhanasar. This case requires the following to prevail in a national interest waiver immigrant visa petition:

1. The alien is a member of the professions holding an advanced degree (above a bachelor’s degree) or an alien of exceptional ability;
2. The alien’s proposed endeavor has both substantial and national importance;
3. The alien is well positioned to advance the proposed endeavor; and
4. That, on balance, it would be beneficial to the US to waive the requirements of the job offer of the labor certification.

It should be noted that although the nebulous criteria differ for these three categories, and different legal arguments must accompany these petitions, they rely on the same information and documentation about the achievements and track record of the foreign national beneficiary.

Besides the differing degrees of challenge in the three categories, there is another important consideration, which is self-petitioning versus sponsorship by an employer. Only the EB-2 national interest waiver and EB-1A extraordinary ability categories, not the EB-1 outstanding researcher category, allow foreign nationals to be sponsored by an employer or petition for themselves (self-petition). It is recommended that foreign nationals self-petition for the EB-2 national interest waiver or EB-1A extraordinary ability category, since it provides more mobility for them. If they file the petitions on their own behalf, then they are not tethered to a particular employer until the petition is approved. This is because foreign nationals pursuing legal permanent residency through an employer-sponsored immigrant visa petition must intend to work for the sponsoring employer pursuant to the terms of the petition upon approval of the Form I-485 for legal permanent residency or an immigrant visa petition at a US consulate abroad. Therefore, if foreign nationals need to change employers during the course of or after an approval of an employer-sponsored petition, they would need to restart the process with the new employer.

Finally, it should be emphasized that foreign nationals can file multiple Form I-140 immigrant visa petitions, in any combination, simultaneously, or sequentially with USCIS. For example, an institution can first file an I-140 EB-1B outstanding researcher petition, and if it is denied, then the foreign national can file the EB-2 national interest waiver. Alternatively, the foreign national can file the EB-2 national interest waiver and EB-1A extraordinary ability immigrant visa petitions concurrently, although with the option of filing the EB-1A extraordinary ability petition via premium processing there is little reason to do so, unless the foreign national wishes to forgo the premium processing filing fee.