Often Overlooked Green Card Alternatives for Self-Petitioners

For most foreign nationals, the ability to obtain a green card can come from one of two ways: family-based or employment-based. Through the conventional employment-based route, a green card application requires a job offer from a U.S. sponsoring employer. But is this always required? The answer is no, for some. 

With millennials starting to take over the work force, technological innovation and start-up companies are becoming increasingly popular. Some occupations by nature are predominantly for the self-employed and many traditional employers have limitations on both when and who they will sponsor for a green card. Not to mention, the most common employment-based application requires a labor market test administered by the Department of Labor which can take up to 18 months to get approved.  

However, unbeknownst to many, there are a few exceptions to the general rule that allow a foreign national to pursue a green card without a permanent job offer and completely bypass the labor certification test: First-preference Extraordinary Ability (EB-1) or a National Interest Waiver (EB-2). Both options are widely under-utilized by the immigration community.

I spend a lot of time educating clients about long-terms options they once thought were impossible. I recently worked with a client who had just started his post-doctoral research period and was working pursuant to his student visa’s optical training period. He had already attained an extremely impressive resume and had quickly become an industry leader in his very niche field of study. However, because he was still a relatively new researcher and hadn’t been working with his University for very long, they had not agreed to sponsor him for permanent residency. During our initial consultation, he expressed his concern that he would not be able to apply for a green card for some time and was afraid he had no other options. Unbeknownst to him, he was the perfect candidate for a self-sponsored EB-1 case. The case ended up being a success and he was approved within two weeks without ever having to tell his University he was even applying! 

Extraordinary Ability (EB-1)

As discussed, a foreign national may “self-sponsor” their own green card by using the first-preference extraordinary ability category. This option is the highest-level category and is quite subjective in nature. Open to individuals from all fields including science, arts, education, business, or athletics, applicants must prove that they are among the top few percent of people in their field and have achieved national or international acclaim. While intimidating to some, this has become a rather attainable option for specific foreign nationals. 

In short, successful applicants must provide evidence satisfying at least three of the ten enumerated criteria. As the most elite green card category available, applicants often spend months preparing their petitions and obtaining detailed reference letters from industry luminaries attesting to their top-notch standing in their field. Nonetheless, perhaps the biggest perk to this category involves the ability to expedite the processing of the application and bypass the backlog of green cards for popular countries such as India and China once approved. 

National Interest Waivers (EB-2/NIW)

The second option for a self-petitioned green card case is commonly referred to as an “NIW” a.k.a. a National Interest Waiver. An NIW is like the EB-1, in that it does not require a labor market test, but the legal standard for a showing of excellence in the field is a bit lower and U.S. Citizenship and Immigration Services (USCIS). While there is no bright-line rule for what is considered a successful case, the applicant must generally hold an advanced degree; their work must be of substantial intrinsic merit; be national in scope; and waiving the requirement of the labor certification (mentioned above) must be in the national interest.  

Although there are some industries that lend itself more favorable to this category, the current influx of technological innovation will likely attract an abundance of candidates in the imminent future. 

Due to the complex nature of the variety of available options, it is crucial for an individual who wishes to apply for permanent residency in the U.S. to consider all options. In order to prepare the best possible case, it is strongly recommended that applicants consult with experienced immigration counsel to assess their qualifications and advise the best strategy moving forward. If you have questions, please contact me at [email protected].