Employment-Based Green Card Petition for Individuals Outside the U.S. — EB-1A (Alien of Extraordinary Ability) and EB-2 NIW (National Interest Waiver)

Many prospective clients ask whether they can apply for an employment-based green card while living abroad. The answer is yes. We have helped more than 1,500 clients outside the U.S. obtain green cards through EB-1A (Alien of Extraordinary Ability) and EB-2 NIW (National Interest Waiver).

Best Categories for Those Outside the U.S. — EB-1A (Alien of Extraordinary Ability) and EB-2 NIW (National Interest Waiver)

Nearly every employment-based category requires a U.S. employer to sponsor and petition. Two exceptions exist: EB-1A (Alien of Extraordinary Ability) and EB-2 NIW (National Interest Waiver). In both, a foreign national may self-petition for an employment-based green card with no U.S. employer as petitioner. No job offer is required, so someone living outside the U.S. can obtain a green card in either category without an offer from a U.S. employer.

A. EB-1A (Alien of Extraordinary Ability)

EB-1A covers Aliens of Extraordinary Ability. The term "extraordinary ability" covers only those in "that small percentage who have risen to the very top of the field of endeavor."

Under Section 203(b)(1)(A) of the Immigration and Nationality Act, immigrant visas are available to aliens with extraordinary ability if:

1. the alien has extraordinary ability in the sciences, arts, education, business, or athletics, demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation,
2. the alien intends to enter the United States to continue work in the area of extraordinary ability, and
3. the alien's entry into the United States will prospectively benefit the United States substantially.

First, the petitioner may show sustained acclaim and recognition in the field through a one-time achievement, meaning a major, internationally-recognized award. Otherwise, the petitioner must submit documentation satisfying at least three of the ten regulatory criteria listed here.

Once those evidence requirements are met, USCIS officers weigh the whole record in a final merits determination: does it show sustained national or international acclaim and place the individual among the small percentage at the very top of the field of endeavor? See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

B. EB-2 NIW (National Interest Waiver)

To obtain a national interest waiver, the petitioner must first qualify for the underlying EB-2 classification as an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business.

Most of our clients meet the EB-2 requirements by holding an advanced degree, shown in either of two ways. First, an academic or professional U.S. degree above the baccalaureate level; a foreign degree also works if it is equivalent to a U.S. degree above that level. Second, absent an advanced degree, a U.S. bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. USCIS treats the bachelor’s degree plus five years of experience as equivalent to a U.S. master’s degree.

If neither pathway applies, the foreign national may instead show exceptional ability in the claimed area of expertise significantly above the level ordinarily encountered in that profession.

Because EB-2 (employment-based, second preference) requires that a U.S. employer seek the individual’s services, a separate showing must establish that waiving the job offer requirement serves the national interest.

Neither the statute nor the regulations define "national interest," but USCIS set out a framework for adjudicating these petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

Under Dhanasar, once the petitioner establishes eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest waiver at its discretion if the petitioner demonstrates:

1. that the foreign national's proposed endeavor carries both substantial merit and national importance;
2. that the foreign national is well positioned to move the proposed endeavor forward; and
3. that, on balance, the United States would benefit from waiving the job offer requirement and the labor certification requirement that follows from it.

For information about EB-2 NIW (National Interest Waiver), please see here.

Steps for the Application Process If You File EB-1A (Alien of Extraordinary Ability) or EB-2 NIW (National Interest Waiver) Outside the U.S.

If you are outside the U.S. and want an employment-based green card, the process has two steps:

First, file an I-140 to qualify under a category such as EB-1A or EB-2 NIW. If you are the primary applicant, you alone file the I-140; your dependents need not file their own.

If you are outside the U.S. when your I-140 is approved and your priority date is current, you and your dependents may apply for an immigrant visa at a U.S. Department of State consulate abroad and then be admitted as permanent residents. This is “Immigrant Visa Processing” (IVP).

“Immigrant Visa Processing” (IVP) begins when your I-140 is approved and your priority date is current in the Dates for Filing chart of the monthly visa bulletin (here). USCIS then forwards your I-140 to the National Visa Center (NVC), which sends the payment invoice if your priority date is current or close to current. You prepare the supporting documents, NVC reviews them, and you wait for your priority date to become current in the Final Action Dates chart and for the local consulate to schedule your interview.

After receiving your immigrant visa, you must enter the United States within its validity period, usually 6 months from issuance. Entry with that visa makes you a Legal Permanent Resident, as shown by the I-551 stamp in your passport. Your I-551 Alien Registration Card (commonly called a green card) is mailed to the address on your immigrant visa application a few weeks after you enter.

Based on our firm’s recent data, “Immigrant Visa Processing” (IVP) usually takes about 5-8 months from I-140 approval. For more information, see this link.

Alternatively, if you are applying from outside the U.S., you may enter during the process on a nonimmigrant visa, ideally one that does not prohibit immigrant intent, such as H-1B/H-4, L-1/L-2, or O-1/O-3. If you are inside the U.S., your priority date is current, and you are otherwise eligible, you may instead file an I-485 to adjust status to permanent resident as the second step rather than completing “Immigrant Visa Processing” (IVP). Note that I-485 processing generally takes longer than “Immigrant Visa Processing” (IVP) (around 10 months based on our firm’s recent data).

I Don’t Have a U.S. Job Offer. Don’t I Need One to Apply for an Employment-Based Green Card?

You do not need a U.S. job offer under a self-petitioned category such as EB-2 NIW (National Interest Waiver) or EB-1A (Alien of Extraordinary Ability). You may apply for an employment-based green card as long as you satisfy, and intend to keep satisfying, that category’s requirements. If we are retained for your EB-2 NIW or EB-1A case, we will advise further on the employment evidence that strengthens it.

How Will the USCIS Evaluate My EB-1A (Alien of Extraordinary Ability) or EB-2 NIW (National Interest Waiver) Petition if I Apply From Outside the U.S.?

If you apply for an employment-based green card from outside the U.S., the officer adjudicating your I-140 will focus on your plan to continue your work once you obtain your immigrant visa and enter the U.S. This is especially true for EB-2 NIW, where the petitioner must show (a) the proposed future endeavor in the U.S. and (b) how it is nationally important. We generally advise clients to prepare a detailed sworn statement about their intended future work in the U.S. and to submit it with supporting evidence of potential employment in the U.S.

Please be assured, however, that while a job offer may help an EB-1A or EB-2 NIW petition filed from outside the U.S., an actual job offer itself is not required for these categories.

Will My Chances of Approval Be Lower Just Because I am Applying from Outside the U.S.?

No. If you satisfy all the requirements and provide the evidence your case needs, your chances of I-140 EB-1A or EB-2 NIW approval should not be lower because you apply from outside the U.S.

As between “Immigrant Visa Processing” (IVP) and the I-485, IVP may be technically harder because filing an I-485 requires valid visa status in the U.S. Anyone in the U.S. on a valid nonimmigrant visa already passed a background check and interview to obtain it, so I-485 filers were vetted before entry while immigrant visa applicants were not. Even so, our IVP clients do not face lower approval rates than our I-485 clients.

After My I-140 is Approved, Will I Have A Visa For Legal Entry and Work Authorization?

No. An approved I-140 only lets you apply for an immigrant visa so you can come to the U.S. and be admitted as a permanent resident. It grants no visa status or work authorization on its own, so you cannot enter until you finish Immigrant Visa Processing (IVP) and receive your immigrant visa. To enter earlier, you need a nonimmigrant visa that permits entry (ideally one that does not prohibit immigrant intent, such as H-1B, L-1, or O-1).

Note that if you enter the U.S. on a nonimmigrant visa that permits immigrant intent before starting or completing IVP, you may instead file an I-485 from within the U.S. to adjust status to permanent resident (if your priority date is current).

If I Have an Approved I-140, Do I Need to Have a Job Offer for One of the Positions I Applied for by the Time I Go to My “Immigrant Visa Processing” (IVP) Interview?

No. USCIS and DOS (Department of State) know the green card process is lengthy and often takes several years. They also know that, given the restrictions on employment authorization for any U.S. position, a job offer from a U.S. employer is not always practical for an international applicant. USCIS therefore does not require a job offer for any position you applied for while preparing your I-140 or named in it, particularly since several years may pass between applying for that position and filing your I-140 and your IVP interview.

What matters is that, when you file your I-140, you genuinely intend to work in any position you name in that petition, assuming it is offered and circumstances let you accept it and begin work for that employer. At your IVP interview you need not hold an offer for any position listed at the I-140 stage, but you should provide updated evidence of potential employment (such as recent job applications) showing that you still intend to work in your field of expertise (as required for EB-1A and EB-2 NIW) and that the work would be nationally important and advance the proposed endeavor stated in your I-140 petition (as required for EB-2 NIW).

You need not apply for U.S. jobs continuously between starting your I-140 and scheduling your IVP interview. We suggest that you (a) accumulate evidence of potential employment from before you file your I-140 through its approval, then (b) resume applying and reaching out to employers a couple of months before you expect your IVP interview, so you can give the interviewer updated job applications and evidence of potential employment.

Can I Retain Your Firm to Handle Both My I-140 Petition and “Immigrant Visa Processing” (IVP)?

Yes. Our firm handles both your initial I-140 petition under EB-1A or EB-2 NIW and your IVP process to obtain your immigrant visa after approval.

Retaining our firm to handle your IVP includes these services:

Communicating with the National Visa Center (NVC) about your IVP, assisting with payment of your IVP fees (currently $345 per person), assisting with the DS-260 submission, advising on preparation of the IV (immigrant visa) supporting documents, reviewing, printing, and submitting them to NVC, corresponding with the embassy/consulate after NVC transfers the case, assisting with payment of your USCIS Immigrant Fee (currently $235 per person and paid only after the IV is issued.), and corresponding with USCIS about green card issuance after entry with the IV. We cannot accompany you to the IV interview at the US consulate, and our attorney fee excludes USCIS or DOS fees and document production fees (e.g., police certificates). We also cannot guarantee IV approval, which rests with the officer processing your IVP, though our approval rates for IVP clients are usually high.

How Can I Work With Your Firm If I Don’t Live in the U.S.?

Most of our clients are around the world and throughout the U.S. (including states where we have no offices). More than 95% of our cases are handled remotely, so we work with you wherever you live. Case preparation and communication are handled primarily through our Case Management System, email, and telephone appointments.

I Received a U.S. Job Offer After I Filed My I-140/My I-140 Was Approved/I started “Immigrant Visa Processing” (IVP), Can I Accept This Offer and Enter the U.S. to Work in this Job?

Yes. However, you should consider that:

1. The position needs to meet the requirements of the EB-1A or NIW categories. As mentioned above, to qualify under both EB-1A and EB-2 NIW, your future position must continue to be in your field of expertise (as indicated on your I-140 petition). In addition, for EB-2 NIW, the position must be considered nationally important and must serve to advance the proposed endeavor indicated in your I-140 petition.
2. Your entry may depend on which nonimmigrant visa you are able to obtain to enter the U.S. and work in this position.

Broadly speaking, U.S. visas fall into two classes: those permitting immigrant intent (intent to immigrate and become a permanent resident) and those permitting only nonimmigrant intent (intent to enter temporarily and leave when the work is done or the visa expires).

After you file your I-140, the best options are generally categories such as H-1B/H-4, O-1/O-3, or L-1/L-2. H-1B/H-4 and L-1/L-2 are dual-intent visas (permitting immigrant and nonimmigrant intent at once), while O-1/O-3 does not strictly prohibit immigrant intent, so both are good options for entering the U.S. after an I-140 filing or other evidence of possible immigrant intent.

However, if you are an international applicant who plans to complete the full green card process through IVP, you may enter the U.S. on a nonimmigrant status permitting only nonimmigrant intent, such as F-1/F-2, J-1/J-2, or TN. An I-140 filing may itself suggest some immigrant intent, and if USCIS finds that you have demonstrated it, your F, J, or TN visa application or your entry may be denied. In practice, applicants who file an I-140 and plan to finish through IVP usually have more freedom to obtain such visas and to reenter the U.S. on them after international travel, so depending on USCIS discretion and the sponsoring program or employer, you may be able to obtain the visa and enter for your prospective job. If you receive a job offer, consult the employer about your visa options.

In addition, if your priority date is not current and you therefore cannot obtain your immigrant visa, USCIS would consider that you cannot act on your immigrant intent when you apply for and enter the U.S. on a visa permitting only nonimmigrant intent. That should also make travel and entry feasible on an F, J, or TN visa.

However, if you do wish to enter the U.S. for an employment position after filing an I-140, we suggest the safest entry option is an H-1B, O-1, or L-1 visa.

Can I Travel to the U.S. Using a Tourist Visa (B1/B2)?

Yes, if you have no immigrant intent and intend only a short trip. However, entry on B1/B2 after filing an I-140 may be denied. Bring documents showing a short-term purpose, such as a return ticket, a detailed itinerary, and an employment letter from your home country. Entry is up to the border officer, who may deny it at his or her discretion.

As with other visas permitting only nonimmigrant intent (F, J, TN, etc.), entering on B1/B2 is more feasible if your priority date is not current, since the officer would recognize that you cannot act on your immigrant intent (e.g., file an I-485) while in the U.S. Whether or not your priority date is current, it is always safest to travel with the documentation described above showing a short-term purpose.

I am from a Country Affected by the Travel Ban/Executive Order 13780. Can I Still Obtain an Employment-Based Green Card While I am Outside the U.S.?

If you are a citizen or national of Iran, Syria, Yemen, Libya, Somalia, Chad, North Korea, Venezuela, Nigeria, Burma, Eritrea, Kyrgyzstan, Sudan, or Tanzania, you may still file your I-140 from outside the U.S., and neither your nationality nor your location should affect your chances of approval.

The suspension of entry regulations do affect immigrant visa applications, however, so you may not be able to finish “Immigrant Visa Processing” (IVP) and obtain your immigrant visa unless you qualify for an exception or waiver of the executive order. (If you are from Venezuela, your eligibility is not suspended, but you will undergo additional security checks before the visa can be granted.)

Exceptions to the Executive Order that may apply to individuals outside the U.S.:

• Dual nationals traveling on a passport issued by a non-designated country;
  • If you are traveling with a passport from a non-designated country (e.g., Canada, United Kingdom, etc.), the restrictions DO NOT apply to you.
• Individuals traveling on diplomatic and related visas; or
  • e.g., NATO, C-2, G-1, G-2, G-3, or G-4 visas.
• Any foreign national granted asylum by the United States; any refugee already admitted to the United States; or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers - a consular or border officer may grant a waiver case by case if the foreign national demonstrates that:

• Denial of entry would cause the foreign national undue hardship;
• Entry would pose no threat to the national security or public safety of the United States; and
• Entry would be in the national interest.

Of the few exception and waiver categories available, our firm has successfully used two ways for an applicant to qualify for an exception or waiver of the travel ban:

• By holding citizenship in a country other than those designated in the Presidential Proclamation.
• By showing that you were in the U.S. on September 24, 2017 (the date the Presidential Proclamation took effect) with a valid nonimmigrant visa.

You can qualify for an exception or waiver on grounds other than the two listed and still apply for a green card on different qualifying factors, but your immigrant visa application may be denied at the border officer’s discretion, and you will likely face lengthy administrative processing (sometimes 2 or more years based on our experience with our own clients).

Keep in mind that the executive order turns on nationality or citizenship, not religion: it applies to a Christian from Yemen but not to a Muslim from Germany.

Success Stories

• EB-2 NIW (National Interest Waiver) Approval for a Senior Electronics Engineer in Taiwan
• EB-1A (Alien of Extraordinary Ability) Approval for an Attending Physician in China
• EB-2 NIW (National Interest Waiver) Approval for an Assistant Physician of Structural Engineering in Iran
• EB-2 NIW (National Interest Waiver) Approval for a Molecular Biology Researcher in Iraq
• EB-1A (Alien of Extraordinary Ability) Approval for a Regenerative Medicine Professor and Physician in China
• EB-2 NIW (National Interest Waiver) Approval for a Bioengineering Expert in South Korea
• EB-1A (Alien of Extraordinary Ability) Approval for a Physics Professor in Germany
• EB-2 NIW (National Interest Waiver) Approval for a Ph.D. Candidate in Pakistan