It’s possible to obtain a green card in the US based on an Employment-Based visa (EB) without a job offer or sponsor. This is possible under the EB-1A and EB-2 when you pair the EB-2 with a National Interest Waiver (NIW). Obtaining a green card in the US when it’s on an Employment-Based visa usually requires a job offer or sponsor. If you’re a person of exceptional ability or work in a field with national importance, you can avoid that requirement by filing for an Employment-based visa that allows you to file a petition by yourself. This article will go over some details required under the EB-1A and EB-2 with NIW.
Employment-based Visas that Require a Job Offer or Sponsor
There are many work or employment-based visas that require a job offer or sponsor. For immigrant visas, these include the EB-2 and EB-3 visas. For non-immigrant, these include H-1B and O-1. There are other visas, including EB-1B, EB-1C, L-1, that require the immigrant to have a job already, and who is coming to the US to work for that employer.
Employment-based Visas that do not Require a Job Offer or Sponsor
These work or employment visas are few and only include the EB-1A and EB-2 when paired with a National Interest Waiver.
What is an EB-1A Visa?
In general, the EB-1A visa is for people with an extraordinary ability in the arts, sciences, business, education, or athletics. The biggest benefit of this visa type is the petitioner does not need a job offer. Another benefit is this visa type is eligible for premium processing, for an extra fee, allowing the petition to be processed in 15 days. You can read about the EB-1A visa here.
How to Qualify for an EB-1A Visa
You must have extraordinary ability. Extraordinary ability is a high standard and difficult to achieve without extensive documentation, including publications, awards, and letters of recommendation, among other evidence. The legal standard to prove extraordinary ability is the petitioner must meet 3 out of 10 criteria and be coming to the US to work in the field of endeavor by showing a future plan:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
The above criteria are met by providing documents from you, an employer, a colleague, someone who you worked within a project, someone you met at a conference, and someone you wrote a research paper with, and many other documents, including letters of recommendation, declarations, and advisory opinion letters.
What is an EB-2 Visa?
In general, the EB-2 visa is for those who possess an advanced degree or can demonstrate exceptional ability in the sciences, arts, or business. This visa type requires a job offer from a U.S. company. This means that the petitioner will be the employer, who must file for the labor certification, or PERM, along with the I-140. This is a multi-step process that requires precise timing and should only be done by an experienced immigration attorney. You can read about the EB-2 visa here.
What is a National Interest Waiver Visa?
In general, a National Interest Waiver (NIW) is for those who qualify for the EB-2 (advanced degree or exceptional ability) and who work or have a proposed endeavor in a field that is of national importance and will provide a substantial benefit to the United States. The foreign national must then prove that he or she is well-positioned to advance the proposed endeavor. The NIW waives the requirement of a job offer and can be filed by the foreign national himself or herself. However, the foreign national must still be coming to the US to work in his or her field by showing a future plan. You can read about the National Interest Waiver here.
How to Qualify for a National Interest Waiver
To determine national importance, USCIS considers the field’s potential prospective impact by evaluating the impact on the entire US. Evidence to prove this could be documentation that the work in the field has national or global implications within the field, has significant potential to employ US workers or has some other economic effect, will broadly enhance societal welfare or cultural or artistic enrichment and impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.
To prove substantial merit, documentation showing that the field provides some benefit, including innovation or that the US is ahead in innovation or falling behind in innovation. News articles, journal articles, and letters of recommendation are used for this prong.
For the well-positioned prong, the evidence comes from the foreign national. This is the most document-heavy prong. Some documents that can be used include publications and citation count, government funding, membership in a professional group or association, awards, published materials about the foreign national’s work, patents, contracts, others who rely on the foreign national’s work, evidence showing that the foreign national played a leading or critical role at a distinguished organization, and letters of recommendation. You can look to the EB-1A criteria as a guideline for documents to gather and submit.
Finally, the foreign national must demonstrate that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. This prong is often used to deny petitions because it is the most vague.
Can I File an Employment-based Petition Myself?
Sure, if you know everything that USCIS wants. You can follow the above criteria and details. However, many Requests for Evidence (RFE) provide much more detail on the various documents and evidence that will be needed to be submitted, on errors in the argument in the cover letter, on errors in documents submitted that limit the RFE response. Can you submit on your own? Sure, if you have read through thousands of RFEs to know all the details that are not posted on any website, including the USCIS website.
We recommend that you do not file on your own petition for an Employment-based visa. Let us help you because we can help you avoid saying something or submitting a document that will hurt you in an RFE response or in a future re-filing. We have seen too many petitions that were first filed by the immigrant on his or her own only to cause problems in the future.
Contact us to let us help you either in the initial filing or in an RFE response.