Self-Petitioned, Employment-Based Options

“Can I file a green card for myself?” The Murthy Law Firm regularly receives inquiries like this from foreign nationals wondering whether it is possible to self-sponsor to become a lawful permanent resident (“green card” holder). While most of the employment-based categories require a U.S. employer to sponsor the foreign national, there are a few that allow for self-petitioning if certain requirements are met.

EB1(a), Persons of Extraordinary Ability

The employment-based, first preference (EB1) category has three subcategories. Only one of these subcategories, EB1(a), extraordinary ability, allows for self-petitioning. This selective category is available to individuals with extraordinary ability in business, science, art, education, or athletics. Candidates who may qualify for the EB1(a) generally are recognized as being at the top of their respective fields and intend to continue to work in that field in the United States.

EB1(a) Eligibility Criteria

To qualify under EB1(a), the foreign national must be able to show sustained national or international acclaim. The individual’s achievements in the field generally must be evidenced by extensive documentation. Qualification can be demonstrated by a one-time, major international achievement, such as a Nobel Prize, or with documentation in a minimum of three categories of evidence out of the following list of ten.

• Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Documentation of membership in associations in the field that require outstanding achievements of their members as judged by recognized national or international experts in the field
• Evidence of the candidate’s participation, either individually or on a panel, as a judge of the work of others in the field
• Published material about the individual in professional or major trade publications or other major media, relating to the foreign national’s work in the field
• Evidence of the foreign national’s authorship of scholarly articles in the field in professional or major trade publications or other major media
• Evidence of the foreign national’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
• Evidence of the display of the foreign national’s work in the field of artistic exhibitions or showcases
• Evidence of commercial successes in the performing arts, as shown by box office receipts or sales of recordings
• Evidence that the foreign national has commanded a high salary or other significantly high remuneration for services, in relation to others in the field
• Evidence that the foreign national has performed in a leading or critical role for organizations that have a distinguished reputation

If the ten criteria listed above do not readily apply to the applicant’s occupation, the individual may submit comparable evidence to establish eligibility.

Totality of the Circumstances Test

Even if the EB1(a) applicant can provide evidence of at least three of the ten criteria, this does not necessarily mean that the case will be approved. Rather, at that point, the U.S. Citizenship and Immigration Services (USCIS) will review all of the evidence in its totality to determine whether the overall, relatively stringent EB1(a) criteria are met.

EB2 National Interest Waiver

Another option allowing for self-petitioning is the national interest waiver (NIW). These cases fall within the employment-based, second preference (EB2) category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

The EB2 category generally requires a job offer from an employer and a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in selected instances in which the foreign national’s contributions are at such a level that the nation’s interests are better served by not having the candidate undergo the PERM process.

There is a separate type of NIW petition for physicians working in areas designated as medically underserved. That option is outside the scope of this article. An overview of NIW filings for physicians is available on MurthyDotCom. See NIW for Physicians Completing J-1 Waiver Service  (26.Aug.2019).

NIW Eligibility Criteria

Similar to the EB1(a), extraordinary ability category, the EB2 NIW category requires a showing of significant success and contributions in the field of expertise. There must be clear evidence of the anticipated benefits to the United States from the individual’s work, and these benefits must outweigh the nation’s interest in protecting U.S. workers through the PERM process. One generally must be rather accomplished to be a good candidate for an NIW; however, it does tend to have a slightly lower threshold than the EB1(a) category.

Three-Prong Test

To establish eligibility for an NIW, the foreign national must be eligible to file under the EB2 category – this means that the applicant must hold an advanced degree, or its equivalent, or else be an individual with exceptional ability in the sciences, arts, or business. The applicant must also plan to continue work in the field of expertise. If all these factors are met, the individual must still demonstrate eligibility using the following three-prong test.

• Evidence the foreign national’s proposed endeavor has both substantial merit and national importance
• Evidence the foreign national is well positioned to advance the proposed endeavor
• Evidence that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification

More details on the NIW requirements are available on MurthyDotCom. See New Framework from AAO for NIW Adjudication (16.Jan.2017).

National Interest Waiver for Entrepreneurs

One interesting application of the NIW option is for entrepreneurs. The USCIS has stated that it is possible for an entrepreneur to qualify for an NIW, but very little guidance on how to demonstrate eligibility has been provided. Still, if one can demonstrate how an entrepreneurial venture satisfies the previously discussed 3-prong test, an EB2 NIW case may be a viable option.

EB5 Immigrant Investors

The employment-based, fifth preference (EB5) immigrant investor category is another self-sponsored green card option. Under the EB5 investor program, a foreign national can self-petition for permanent resident status, based upon an investment of $1,050,000 in a U.S. commercial enterprise. The investment requirement is reduced to $800,000 if the investment is made in a qualifying government infrastructure project, or if the enterprise is located in a targeted employment area – that is, a rural area or area with high unemployment. The investment must create at least ten full-time jobs for U.S. workers.

If the initial EB5 petition is approved, the investor can obtain a conditional green card valid for two years. Prior to expiration of the green card, the EB5 investor must file another petition with the USCIS to demonstrate that the EB5 requirements have all been met. If approved, this serves to remove the conditions on the green card and the investor is then issued a standard green card. See Overview of the Revisions Made to the EB5 Program (06.Apr.2022).

Conclusion

There are limited instances in which a foreign national can self-petition for permanent residence. However, for aspiring immigrants who qualify, these categories can be excellent options. For an evaluation of your credentials to determine whether you may be a good candidate for an EB1(a) or NIW case, please schedule a consultation with a Murthy Law Firm attorney. For questions related to the EB5 program, contact us at EB5@murthy.com.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which has been updated and remains relevant and has been updated for our readers.

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