Immigration Law Associates
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Extraordinary Ability and National Interest Waiver Similarities and Differences

By The Staff of Immigration Law Associates

Two common obstacles for foreign nationals seeking permanent residence in the U.S. are the need for an employer sponsor and the labor certification requirement. There are two distinct immigration classifications which allow an alien to self-sponsor and thereby avoid both. The first is the EB-1A "alien of extraordinary ability" category, and the second, the National Interest Waiver, comes under a provision of the EB-2 "advanced degree professional" to waive the alien labor certification requirement when the alien demonstrates his presence in the U.S. is "in the national interest." Foreign nationals seeking this waiver may self sponsor, but must hold an advanced degree or the statutory equivalent. Both categories are distinguished from EB-1B, which does not require labor certification, but does require a full-time job offer.

However, the EB-1A category and the NIW are also distinguished from each other. Beneficiaries of EB-1A cases must show they are the subjects of sustained national or international acclaim by meeting a criteria test. Aliens petitioning for national interest waiver (NIW) must show that their work is of intrinsic merit, national in scope, and that, essentially, their continued work is of greater benefit to the U.S. national interest than the labor certification requirement that protects American workers. Most, if not all, areas of endeavor can be shown to have intrinsic merit, including any art or science. Fewer, but still many, activities are national in scope. For example, in the precedent National Interest Waiver case, the beneficiary worked on highways in New York Sate only - but his work was found to be in the national interest because it maintained interstate routes. However, some individuals with restricted local or regional activities might have difficulties with this requirement. By far the most challenging aspect of an NIW case is the final requirement. Adjudication trends change over time; currently, however, the relatively great benefit derived from the alien's work is most often documented by showing his or her large degree of influence in the field.

In practice, the evidence needed to support an NIW case often overlaps with the evidence needed to support an EB-1A case. The latter does allows someone who has won a major, internationally recognized award (e.g. Nobel, Grammy, Pulitzer) to enter on that basis alone. But, as few individuals have been so honored, most EB-1A petitioners have to meet three of a possible ten alternative criteria. These require documentation of prestigious national or international recognition, for example, articles written about the individual in well-known national/ international publications; exhibition of his or her work at national/international shows well recognized by the professional community; articles authored by the individual in international/national journals with high circulation; or performance in a critical role for an organization recognized nationally/internationally as prestigious. Further, one must generally show that all such recognition was strongly focused on the beneficiary.

An individual who has the evidence required for the EB-1A category therefore also has evidence of a qualifying degree of influence for a National Interest Waiver cases. However, those seeking the NIW must also have a field of endeavor that can be shown to be beneficial to the national interest. There is no such requirement for the EB-1A, so an individual who is a world expert in any discipline, no matter how localized, may apply under this category. On the other hand, a foreign national who has highly-cited papers on a topic of national interest (e.g. Alzheimer's disease, global warming) might find it easier to show a high degree of influence in the field to support an NIW petition than to show international acclaim under three different criteria to support an EB-1A case.

Another difference between the two routes, of special interest to Indian nationals, is the much lower likelihood of retrogression in the EB-1A category than in the EB-2 Advanced Degree Professional. Retrogression, of course, is a quote-based delay in eligibility to file Form I-485. As the major benefits to a pending permanent residence case - legal immigration status, work authorization and the travel document -- are available only after the I-485 has been filed, those Indian nationals affected by retrogression in EB-2 can gain those benefits with less (and often with no) delay by filing in the EB-1A category if possible.

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