EB1B vs NIW for Researchers

EB1B outstanding researcher and the EB2 National Interest Waiver are two different green card strategies frequently considered by scientists, professors and researchers.

EB1B focuses on international recognition as outstanding and requires a qualifying employer-sponsored position. NIW permits self-petitioning and focuses primarily on the proposed endeavor, national importance and the applicant’s ability to advance that endeavor.

Different Employment-Based Categories

EB1B is an employment-based first-preference classification.

NIW is part of the employment-based second-preference classification.

Visa availability can differ between EB-1 and EB-2 and can vary over time and by country of chargeability.

Employer Sponsorship

EB1B requires a qualifying U.S. employer.

NIW permits self-petitioning. A researcher does not need an employer to file the I-140 petition if the NIW requirements are satisfied.

Permanent Position

EB1B requires qualifying permanent research employment or qualifying tenured or tenure-track teaching employment.

NIW does not require a permanent job offer.

Three Years of Experience

EB1B requires at least three years of qualifying teaching or research experience.

NIW does not contain that same three-year EB1B requirement, although the applicant must separately establish eligibility for the underlying EB2 classification.

Underlying EB2 Eligibility for NIW

Before USCIS evaluates the national interest waiver, the applicant must qualify for EB2 as either:

The Three NIW Prongs

Under Matter of Dhanasar, USCIS may grant the national interest waiver if the petitioner establishes that:

  1. the proposed endeavor has substantial merit and national importance;
  2. the applicant is well positioned to advance the proposed endeavor; and
  3. on balance, it would benefit the United States to waive the job offer and labor certification requirements.

Review NIW for researchers.

EB1B Recognition Standard

EB1B requires the beneficiary to be internationally recognized as outstanding in a specific academic area.

The petitioner generally must submit evidence satisfying at least two of the six regulatory evidentiary categories.

NIW Does Not Use the EB1B Six-Criteria Test

NIW does not require an applicant to satisfy two of the six EB1B criteria.

Publications, citations, peer review, patents, grants and recommendation letters can still be useful because they may establish the applicant’s record of success, research impact or ability to advance the proposed endeavor.

Publications and Citations

Neither NIW nor EB1B establishes a fixed citation number.

For EB1B, citations may help demonstrate international recognition and research contributions.

For NIW, citations may help establish a track record of success and show that the applicant is well positioned to advance the proposed endeavor.

National Importance

NIW requires the proposed endeavor itself to have national importance.

It is not enough merely to show that science, medicine, artificial intelligence, engineering or another broad field is important to the United States.

The petition should explain the prospective impact of the specific work the researcher proposes to undertake.

International Recognition

NIW does not require the applicant to satisfy the EB1B standard of international recognition as outstanding.

A researcher can potentially have a strong NIW case without qualifying for EB1B.

Private Employer Issues

Private employers sponsoring EB1B must satisfy special requirements concerning the research unit.

These private-employer requirements do not apply to a self-petitioned NIW.

PERM Labor Certification

Neither an approved EB1B petition nor an approved NIW requires PERM labor certification.

For NIW, the waiver specifically removes the normal EB2 job-offer and labor-certification requirements when USCIS finds the waiver to be in the national interest.

Postdocs

NIW may be attractive to postdoctoral researchers because it does not require a permanent research position.

EB1B may become viable when the postdoc obtains qualifying permanent research employment.

Can a Researcher Pursue Both?

Potentially, yes. Many researchers evaluate multiple immigrant classifications because the legal standards are different.

Which Is Stronger?

EB1B may be a natural fit where the researcher has:

NIW may be a natural fit where the researcher:

Review EB1A vs NIW for researchers.

Primary Legal Sources

Contact The Messersmith Law Firm to request a researcher green card evaluation.

This page provides general immigration information and is not legal advice.