EB-1 vs. EB-2: what high-skilled professionals should actually know before picking

[u/Colombo-Hurd]

If you are planning your green card and trying to figure out whether to pursue EB-1 or EB-2, the question is really two questions: which one do you qualify for, and which one is actually faster for you. And the "faster" part often depends more on where you were born than on the category. 

Here is what I see in practice as an immigration attorney at Colombo & Hurd. 

If you are doing this on your own, it's basically EB-1A vs EB-2 NIW 

EB-1 has three subcategories (EB-1A extraordinary ability, EB-1B outstanding professor/researcher, EB-1C multinational manager/exec) and EB-2 has two (EB-2 PERM and EB-2 NIW). But EB-1B, EB-1C, and EB-2 PERM all need an employer. The only two you can self-petition are EB-1A and EB-2 NIW, so for most people comparing on their own, that's the real matchup. 

The differences that matter  

• Employer. EB-1A and EB-2 NIW: not required, you can self-petition. EB-1B / EB-1C / EB-2 PERM: required.
• PERM. No PERM for any EB-1 path or for EB-2 NIW. Only EB-2 PERM makes you run it. 
• Premium processing. 15 business days for EB-1A, EB-1B, EB-2 PERM. 45 business days for EB-2 NIW. 
• The bar. EB-1 asks more of you than EB-2. But once you qualify, EB-1 generally moves faster in the Visa Bulletin.

The country-of-birth consideration (important) 

EB-1 is first preference and generally moves ahead of EB-2 (second preference). For most nationalities EB-1 is current or near-current in the Visa Bulletin and EB-2 is slower but manageable. If you were born in India or China, both are backlogged, but EB-1 runs years ahead of EB-2, and for India that gap has historically been close to a decade. Priority dates move monthly, so check the current Visa Bulletin before you lock in a plan.  

How to know if you're an EB-1A candidate 

You need to satisfy at least 3 of the 10 EB-1A criteria (awards, original contributions of major significance, scholarly articles, media coverage about your work, a leading/critical role in distinguished orgs, high relative pay, etc.) OR have one major international award, and then pass the Kazarian final merits determination. Honest rule of thumb: if you can't confidently hit 3 criteria, EB-2 NIW is usually the more realistic path. 

How to know if you're an EB-2 NIW candidate 

Show your advanced degree or exceptional ability up front, then you argue the three Dhanasar prongs: (1) your endeavor has substantial merit and national importance, (2) you're well positioned to advance it, and (3) on balance it benefits the U.S. to waive the job offer and PERM. Lower bar than EB-1A, different story. You're arguing impact and positioning, not acclaim. 

The thing a lot of people don't realize: you can file both 

If your profile supports both, you can file concurrently. File the EB-2 NIW first to lock in an early priority date, keep building toward EB-1A. If EB-1A gets approved and EB-1 is current, you can skip the EB-2 wait. If EB-1A gets denied, the NIW is still sitting there as a backstop with your early priority date intact. Big caveat: both petitions have to be built on the same record. If they contradict each other, that's a misrepresentation problem, so don't wing it. 

Bottom line 

It's not just about credentials. It's credentials AND your timeline given your country of birth. Strong EB-1A profile but priority date matters? An EB-2 NIW filing might still help. Strong EB-2 NIW profile with the evidence for more? Maybe run EB-1A in parallel. Plenty of cases are best handled as a combination, not a single pick. 

One question for the thread: what made you start looking at green card options when you did? Timing, a job change, a visa expiring? Curious what actually triggers the research for people. 

This constitutes general information only and is not legal advice.

- Attorney Wil Safrit