The EB-1A vs EB-2 NIW Explained: Requirements, Criteria, and Qualification Strategies

If you’re deciding between EB-1A and EB-2 NIW, start here. This guide explains EB-1A vs EB-2 NIW in plain English, shows the EB-1A criteria and EB-2 NIW requirements (Dhanasar), and gives you a 90-day plan to qualify — especially useful for founders, researchers, and senior engineers.

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TL;DR

• EB-1A (Extraordinary Ability): For people with sustained national/international acclaim. Self-petition; no job offer or PERM. Win via a major award or 3 of 10 criteria, then clear final-merits (totality of evidence).
• EB-2 NIW (National Interest Waiver): For those with an advanced degree or exceptional ability whose endeavor benefits the U.S. Self-petition; no job offer or PERM. Must meet EB-2 threshold and pass Dhanasar’s 3-prong test.
• Rule of thumb: EB-1A focuses on your elite recognition; NIW focuses on the national importance of your work and your ability to advance it.

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EB-1A Green Card (EB-1A Visa) at a Glance

• Who it’s for: People at the very top of their field (science, business, tech, arts, athletics).
• How you qualify:
  1. One-time, major, internationally recognized award, or
  2. At least 3 of 10 criteria and a favorable final-merits determination.
• Why it’s attractive: Self-petition, no PERM, often faster priority category, strong portability for entrepreneurs and researchers.

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EB-1A Criteria: The 10 Regulatory Factors (with practical evidence)

You need 3+ below (or a major award). Then you must still pass final-merits (showing your recognition is set apart and sustained).

1. Lesser nationally/internationally recognized awards
Docs: certificates, selection criteria, number of competitors, press coverage.‍

2. Selective memberships requiring outstanding achievements
Docs: bylaws proving achievement-based admission, acceptance notices.

‍3. Published material about you in major media or top trade outlets
Docs: articles, interviews; circulation/traffic metrics; independent authorship.‍

4. Judging the work of others
Docs: peer-review invitations/completions, program committee roles, hackathon judging.‍

5. Original contributions of major significance
Docs: adoption letters from third parties, production use, patents implemented, standards impact.‍

6. Authorship of scholarly articles
Docs: publications list, citations & field-norm context.‍

7. Artistic exhibitions/showcases (arts)
Docs: curated programs, catalogs, gallery prestige evidence.‍

8. Leading/critical role for distinguished organizations
Docs: org prestige (press, funding, customers) + your role’s outcomes.‍

9. High salary or remuneration
Docs: contracts, W-2/1099, credible market benchmarks.‍

10. Commercial success in the performing arts
Docs: box office, streams, sales charts.

Final-merits tips:

• Tell a coherent elite-status story (why your recognition is rare vs. peers).
• Prefer independent validation (press, citations, third-party adoption) over internal praise.
• Make every exhibit map to a specific criterion and the final-merits narrative.

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EB-2 NIW Requirements (National Interest Waiver)

EB-2 threshold (meet one)

• Advanced degree: Master’s (or higher) OR bachelor’s + 5 years progressive experience; or
• Exceptional ability: Satisfy 3 of 6 indicators (degree; 10+ years experience letters; license; high salary; professional memberships; recognition by peers/government/pro orgs).
• Comparable evidence allowed when the standard criteria don’t fit the field.

Dhanasar’s 3-prong test

1. Substantial merit & national importance of the endeavor (e.g., U.S. competitiveness, critical infrastructure, healthcare/public health, frontier tech/AI, climate, education, national security).
2. Well-positioned to advance the endeavor (track record, skills, partnerships, IP, funding, traction).
3. On balance, beneficial to waive the job offer & PERM (speed to impact, market need, positive spillovers).

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What Is the National Interest Waiver?

It’s a waiver of the usual EB-2 job-offer and PERM requirements when your proposed work benefits the U.S. and you’re well-positioned to deliver that benefit. You still file an I-140, but you can self-petition.

NIW evidence themes that work

• Problem → Solution → Impact framed with U.S.-specific data.
• Roadmap & milestones for 12–24 months.
• External validators: pilots, letters from independent stakeholders, grants, customers.
• Comparative advantage: why you vs. alternatives.

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EB-1A vs EB-2 NIW: Which Should You Choose?

• Choose EB-1A if you can already prove 3–5 strong criteria and your recognition is elite vs. peers (e.g., top-tier press, high citations, judging/standards roles, critical leadership at distinguished orgs).
• Choose NIW if your endeavor’s national value is crystal-clear and you’re well-positioned (funding, IP, partnerships, traction) even if your personal acclaim is still growing.
• Dual-track when both are plausible. File the stronger first and keep the other as a backup.

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EB-1A for Software Engineers: What Actually Works

• Standards & judging: program committees, RFCs/standards bodies, reputable peer-review.
• Adoption evidence: OSS used at scale, patents implemented in production, core services relied on by recognized companies.
• Independent visibility: respected trade press, invited talks/tutorials at major conferences.
• Comp & role: compensation in the top bracket, critical role at a distinguished org.

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90-Day Evidence Sprint (Step-by-Step)

Weeks 1–3 — Audit & pipeline

• Map your profile to EB-1A criteria and Dhanasar; pick a primary track.
• Secure 5–7 independent letters (customers, editors, PIs, standards leads, C-suite at partner orgs).
• Accept 3–5 judging/peer-review opportunities.

Weeks 4–6 — Visible artifact & adoption

• Publish one high-signal artifact: whitepaper, standards draft, OSS release, accepted demo.
• Collect adoption metrics: deployments, user counts, revenue, outcomes, security certifications.

Weeks 7–9 — Traction & proof

• Land targeted trade coverage or thought-leadership.
• Consolidate salary/comp proofs with credible benchmarks.

Weeks 10–12 — Assemble filing

• Draft personal/endeavor statement (EB-1A final-merits or NIW roadmap).
• Build a tabbed exhibit index; ensure each exhibit maps to a criterion/prong.

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Filing Mechanics and Timing

1. I-140 (EB-1A or EB-2 NIW). Premium processing is optional for both.
2. I-485 (if your Visa Bulletin category is current) + I-765 (EAD) + I-131 (Advance Parole).
3. Consular processing is an alternative if you’re abroad.

Notes: Premium processing accelerates I-140 only; it doesn’t speed up the I-485. Always check current visa availability for your country of chargeability.

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How LegalOS Helps

• USCIS-ready packets in ~24 hours powered by vertical AI agents trained on 30+ years of proprietary case data.
• Attorney-in-the-loop: Every petition is reviewed by a licensed attorney.
• Evidence coaching: We help you secure the right letters and assemble airtight exhibits.
• Track record: 40+ years of experience with cases like yours and a near-100% approval rate.

Free case assessment: Upload your CV + a short note about your endeavor. We’ll tell you whether EB-1A or NIW is stronger and give you a 90-day plan.

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FAQs

Is premium processing available for EB-2 NIW and EB-1A?

Yes. Premium processing is available for I-140 filings in both categories. It speeds up I-140 adjudication only; it does not accelerate the I-485.

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Do I need a job offer or PERM for EB-1A or NIW?

No. Both categories allow self-petitioning. NIW waives the job-offer and PERM requirements when Dhanasar is met.

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How many EB-1A criteria do I need?

Either a major award or at least 3 of the 10 criteria, plus a favorable final-merits determination.

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What is the Dhanasar test in plain English?

Show that your endeavor benefits the U.S., you are well-positioned to advance it, and waiving the job offer/PERM is beneficial on balance.

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Can startup founders qualify for EB-1A or NIW?

Yes. For EB-1A, focus on press, judging roles, major-significance impact, and critical leadership. For NIW, emphasize national importance, traction, pilots/LOIs, and why you’re uniquely positioned.

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Do software engineers qualify for EB-1A?

Yes, when the record shows elite recognition — standards leadership, patents in production use, judging roles, top-tier press, or a critical role at a distinguished company.

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Do I need a business plan for EB-2 NIW?

Not mandatory, but a concise roadmap or business plan strengthens Prongs 1–2 by clarifying merit, milestones, and feasibility.

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Can I file I-140 and I-485 together (concurrent filing)?

Yes, if your Visa Bulletin category is current.

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What happens if I get an RFE?

Answer directly with objective, third-party-verifiable evidence. Tighten your final-merits (EB-1A) or Dhanasar (NIW) logic and clearly map exhibits to each point.

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Where does “USCIS EB-1A” guidance fit into my case?

USCIS policy/manuals define the criteria and final-merits framework. Use them as your outline: map each exhibit to a specific criterion and then to the overall elite-status narrative.

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