哪种绿卡更适合你？
刘宗坤律师 白凯玲律师
Choosing the best option for your green card application can be a daunting
task. The various classifications can be confusing and the standards for
each are often vague. This article will break down and analyze three of the
employment-based green card options: Alien of Extraordinary Ability (Eb-1A)
, Outstanding Professor/Researcher (Eb-1B), and National Interest Waiver (
NIW). These three classifications share one important advantage: no Labor
Certification is required. Since the Labor Certification is a standardized
process that gives precedence to minimally qualified US workers,
sidestepping this process is an important benefit. The Labor Certification
process excludes many qualified foreign nationals because US workers with
minimum qualifications can be found in the job market testing.
Which of these three classifications is the best for you? Should you file a
combination of more than one classification? The first step is a close
look at your own credentials.
First and foremost, it’s important to evaluate your specific situation
objectively under the frame of pertinent laws. As a general rule, if you
are still in the early stages of your research career, there is a good
chance that you won’t have amassed the necessary achievements for the Eb-1A
or Eb-1B classification. The standards for both of these classifications
are set high, and require specific types of hard evidence to meet the
standards. But there are exceptions. From time to time, we find that the
credentials of some fresh Ph.D. graduates make a reasonably approval EB-1A
or Eb-1B case. After meeting the basic requirements, the merit of a case
should be specifically evaluated on a case by case basis.
Compared to Eb-1A and Eb-1B, National Interest Waivers are in general a more
forgiving option and better suited to researchers at the early stage of
their career. Again, to determine eligibility, the first step is an
objective evaluation of your credentials. In this process, an experienced
lawyer can analyze your situation thoroughly and advise you on the best
course of action.
Here we brief the pros and cons of each classification, and hopefully you
can have a clearer picture of the classification or classifications that
will suit you best.
Eb-1A: Alien of Extraordinary Ability:
The legal standards for Eb-1A require the applicant to fulfill at least 3 of
the following criteria:
• Receipt of lesser nationally or internationally recognized prizes
or awards
• Membership in associations that require outstanding achievement
• Published reports of the applicant’s work in professional or
major trade publications
• Evidence of participation on a panel or individually as a judge
of the work of others in the same or an allied field
• Original scientific, scholarly, artistic, athletic or business-
related contributions of major significance in the field
• Authorship of scholarly articles in the field
• Display of the alien’s work
• Proof of performance in a leading or critical role for
organizations or establishments with a distinguished reputation
• Proof of having commanded a high salary
• Commercial success in the performing arts
• Other comparable evidence (*Our attorneys will advise you on what
constitutes comparable evidence)
These statutory standards are rigorous, but they are not as clear as they
appear to be. In practice, USCIS has its own adjudicatory standards that are
not always consistent with the statutes. It is likely that you will need
legal advice in determining the validity of some of your evidence. For
example, USCIS sets adjudicatory standards for awards presented as evidence
in Eb-1A petition. Under the USCIS standards, many awards, although very
competitive, do not satisfy the criterion of receipt of lesser nationally or
internationally recognized prizes or awards.
For applicants who meet these high standards, Eb-1A is an excellent option.
As a First Preference classification, one of its major benefits is that the
“priority date” is current for every country. Your priority date is the
date your immigrant application is filed. Even if an immigrant petition is
approved, an applicant cannot file for I-485 Adjustment of Status (the final
step in the Green Card process), until their priority date is current. Eb-
1A petitioners/beneficiaries do not need to worry about their priority date.
They may file I-485 and Eb-1A I-140 concurrently or separately.
Another important benefit for Eb-1A is that no employer sponsorship in
necessary. You are both petitioner and beneficiary in the petition. The
process is under your control, and the approved case belongs to you, not
your employer. This gives you more freedom and allows you to change jobs
without jeopardizing the application as long as you continue to work in the
same field of your expertise.
Eb-1B: Outstanding Professor/Researcher:
The standards for Eb-1B are similar to but less rigorous than those for Eb-
1A. The applicant must:
• Be recognized internationally as outstanding in a specific field
• Possess at least 3 years of experience in teaching or research in
the related field
• Seek to enter the United States for a tenured or tenure-track
teaching or research position at a university or a comparable research
position with a private employer that has at least 3 full-time researchers
and documented accomplishments in the research field
The applicant must also meet at least 2 of the following criteria:
• Authorship of scholarly books or articles (in scholarly journals
with international circulation) in the field.
• Original scientific or scholarly research contributions in the
field
• Participation, either on a panel or individually, as a judge of
the work of others in the same or allied academic field
• Published reports of the applicant’s work in professional or
major trade publications
• Membership in associations that require their members to
demonstrate outstanding achievements
• Receipt of major prizes or awards for outstanding achievement
• Other comparable evidence (Our attorneys will advise you on what
constitutes comparable evidence)
Eb-1B is an excellent option for highly qualified professors and researchers
in permanent or tenure-track positions. A huge advantage of Eb-1B over Eb-
1A is that Eb-1B has lower statutory standards that open this classification
to those who are not qualified for Eb-1A. At the same time, the
adjudicatory standards for Eb-1B set by USCIS are also significantly lower
than those for Eb-1A. You do not need to prove that you are one of the top
researchers in the field. Instead, you are only required to prove that you
have been recognized internationally as outstanding in the field of your
expertise by meeting two of the given criteria.
Like Eb-1A, Eb-1B is also a First Preference classification, and thus the
priority date is current. However, Eb-1B requires employer sponsorship,
which limits your freedom to change employers in the application process.
Eb-1B is therefore an option best suited to those with stable, long-term
employment.
National Interest Waiver:
The National Interest Waiver’s standards are the vaguest of the three
classifications. The law, INA §203(b)(2), requires that a waiver of labor
certification be granted if the applicant’s work is in the “national
interest,” but it never defines what ”national interest” means in this
context. The standards for NIW are taken from an Administrative Appeal
decision, In Re New York State Department of Transportation, and are as
follows:
• The applicant must seek employment in an area of substantial
intrinsic merit
• The proposed benefit must be national in scope
• The national interest would be adversely affected if a labor
certification were required
Unlike the standards laid out for the Eb-1A and Eb-1B, the NIW standards do
not require specific evidence. This means that an applicant can make a
number of arguments in favor of his/her petition, but our experience has
shown that these arguments must be very carefully tailored and organized.
Some seemingly sound arguments, such as labor shortage or unavailability of
non-immigrant visas, are actually illegitimate in NIW petition. When it
comes to evidence, our NIW clients generally have published their work in
peer-reviewed journals and at scientific conferences. But being published
alone is insufficient to warrant an approval of a NIW petition. One
important point that needs to be established is that your work has had some
influence on the field as a whole, or in other words, the influence of your
work has reached beyond the immediate circle of your colleagues. Your
influence can be demonstrated with substantive evidence, such as a record of
heavy citations to your work, or advisory opinion letters submitted by
independent references.
Just like in Eb-1A, you are both petitioner and beneficiary in NIW petition.
The process is under your control, and the approved case belongs to you,
not your employer. This gives you more freedom and allows you to change
jobs without jeopardizing the application as long as you continue to work in
the same field of your expertise.
Unlike Eb-1A and Eb-1B that are First Preference classifications, National
Interest Waiver is a Second Preference classification, and the priority date
is current for all countries except India and China. Applicants who were
born in India or China may have to wait for two or even more years to obtain
green card after they started the application process. But considering the
less rigorous requirements, the flexible standards, and the freedom to
change employers, the advantages of NIW outweigh the disadvantages it has in
regard to priority date.
Combining a National Interest Waiver and Eb-1A or Eb-1B:
Some of our qualified clients choose to file both NIW and Eb-1A or Eb-1B at
the same time to take advantage of each classification. This is a safer
option than filing for an Eb-1A or Eb-1B alone since the NIW serves as a
safety net in the event that the Eb-1A or Eb-1B is denied due to more
rigorous standards than those set for NIW. In many cases, each option comes
with its advantages and disadvantages. Moreover, many factors are involved
in the process, and an experienced lawyer can help you balance the major
factors and make an informed decision.
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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University School
of Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院
执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍
多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员
和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才
（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了
丰富的经验。有兴趣提出申请的读者，可将简历发往zliu@niwus.com。对符合基本条件
者，刘律师会在两个工作日内对您的情况做出免费评估。
白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law
Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执
照，刘宗坤联合律师事务所专业移民律师。
Liu & Associates, PLLC
Wells Fargo Tower, 8th Floor
6161 Savoy Drive, Suite 830
Houston, Texas 77036
Tel： (800) 878-1807
(713) 974-3893
Fax: (866) 608-2766
Email: zliu@niwus.com
Website: www.niwus.com
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