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

We have received many inquiries from potential clients asking if it is possible to apply for a green card via employment-based immigration while living outside the United States. The short answer is yes. As a matter of fact, we have successfully helped more than 1,500 clients outside the U.S. obtain their green cards based on 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)

Almost all employment-based immigration categories require U.S. employers to act as the sponsors/petitioners for the application, but there are two exceptions: EB-1A (Alien of Extraordinary Ability) and EB-2 NIW (National Interest Waiver). These two categories allow a foreign national to self-petition for an employment-based green card without any U.S. employer acting as a petitioner on their behalf. Because of the nature of these two categories, a solid U.S. job offer is not required, and it is possible for a foreign national living outside the U.S. to obtain their green card through these categories without having a job offer from a U.S. employer.

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

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

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

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

First, a petitioner can demonstrate sustained acclaim and the recognition of his or her achievements in the field through a one-time achievement (that is, a major, internationally-recognized award). If that petitioner does not submit this evidence, then they must provide sufficient qualifying documentation that meets at least three of the ten regulatory criteria listed here.

Where a petitioner meets these initial evidence requirements, the USCIS officers will then consider the totality of the material provided in a final merits determination and assess whether the record shows sustained national or international acclaim and demonstrates that the individual is 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 establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification for the underlying EB-2 visa classification as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business.

The most common way our clients meet the EB-2 requirements is to show that they hold an advanced degree. This itself can be shown in one of two ways. First, the foreign national may show that they hold an academic or professional U.S. degree above the baccalaureate level. A foreign degree can also be utilized so long as it is equivalent to a U.S. degree that is above the baccalaureate level. Second, in the absence of an advanced degree, the foreign national may qualify for EB-2 by holding a U.S. bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. USCIS considers the combination of the bachelor’s degree and five years of experience to be the equivalent of a U.S. master’s degree.

In the absence of meeting one of the two pathways to showing that the petitioner holds an advanced degree, the foreign national may instead show they have exceptional ability in their claimed area of expertise that is significantly above that which would be ordinarily encountered in the foreign national’s profession.

Because the EB-2 (employment-based, second preference) classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.

While neither the statute nor the pertinent regulations define the term "national interest," the USCIS set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, grant a national interest waiver if the petitioner demonstrates:

that the foreign national's proposed endeavor has both substantial merit and national importance;
that the foreign national is well positioned to advance the proposed endeavor; and
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.

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 interested in applying for an employment-based green card, you would have to complete two steps in the application process:

The first step involves filing an I-140 to qualify yourself under a certain immigration category, such as EB-1A or EB-2 NIW. For the I-140, if you will be the primary applicant, you are the only person that needs to file the I-140 petition; your dependents will not need to file their own I-140s.

If you are living outside the U.S. when your I-140 is approved and your priority date is current, you and your dependents can apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as permanent residents. This pathway is referred to as “Immigrant Visa Processing” (IVP).

The “Immigrant Visa Processing” (IVP) will begin when your I-140 petition is approved and priority date becomes current in the Dates for Filing chart in the monthly visa bulletin (here). Upon I-140 approval, the USCIS will forward your I-140 approval to the National Visa Center (NVC), after which NVC will send you the payment invoice if your priority date is current or close to being current. You will need to prepare the supporting documents to send to NVC, and NVC will review the documents. Afterwards, you have to wait for your priority date to become current in the Final Action Dates chart in the monthly visa bulletin and for the local consulate to contact you for an interview.

After receiving your immigrant visa, you must enter the United States within your visa’s validity period, which is usually 6 months after you obtain the visa. As soon as you enter the United States using your immigrant visa, you will become a Legal Permanent Resident, as evidenced by the I-551 stamp in your passport. Your I-551 Alien Registration Card (commonly referred to as a green card) will be sent via the mail to the address you listed on your immigrant visa application a few weeks after you enter the United States.

Based on our firm’s recent data, it usually takes around 5-8 months to complete “Immigrant Visa Processing” (IVP) from the day the I-140 petition is approved. Please refer to this link for further information regarding “Immigrant Visa Processing” (IVP).

Alternatively, if you are applying from outside the U.S., you may also be able to obtain 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) to enter the U.S. during the process. If you are inside the U.S., your priority date is current, and you are otherwise eligible to do so, you can file an I-485 application to adjust your status to permanent resident as the second step of the process instead of completing “Immigrant Visa Processing” (IVP). Please note that generally, I-485 processing is usually 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 if you apply under a self-petitioned category such as EB-2 NIW (National Interest Waiver) or EB-1A (Alien of Extraordinary Ability). As long as you satisfy, and intend to continue satisfying, the requirements of whichever category under which you file your petition, you can apply for an employment-based green card. If we are retained for the EB-2 NIW or EB-1A case, we will provide further advice on the type of employment evidence that helps strengthen your case.

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 are applying for an employment-based green card from outside the U.S., the relevant point of inquiry the immigartion officer will consider when evaluating your I-140 petition for approval will be your plan to continue your work when you obtain your immigrant visa and enter the U.S. This is particularly true for the EB-2 NIW category, where the petitioner is required to demonstrate (a) what their proposed (future) endeavor in the U.S. will be and (b) how that proposed endeavor is nationally important to the U.S. To provide the USCIS with information about their plans for work in the U.S., we generally advise our clients to prepare a detailed, sworn statement regarding their intended future work in the U.S. and submit this personal statement along with supporting evidence of their potential employment in the U.S.

Please be assured, however, that while having a job offer may be helpful for your EB-1A or EB-2 NIW petition if you are applying 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. Assuming that you satisfy all the requirements and are able to provide all the evidence necessary for your case, your chances of I-140 EB-1A or EB-2 NIW case approval should not be lower simply because you are applying from outside the U.S.

With respect to “Immigrant Visa Processing” (IVP) versus the I-485 application, it may be technically more difficult to complete IVP than to obtain I-485 approval because, to prior to filing the I-485, one needs to be on a valid visa status in the U.S. Everyone who is in the U.S. with a valid nonimmigrant visa has already had to go through background check and personal interview to obtain the visa. That is, those who file I-485 in the U.S. have gone through some vetting process before entering the U.S. while those applying for an immigrant visa have not. That being said, we have not found that our IVP clients 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 qualifies you to apply for an immigrant visa in order to come to the U.S. and be admitted as a permanent resident. It does not grant any legal visa status or work authorization on its own, so you would not be able to enter the U.S. until you finish Immigrant Visa Processing (IVP) and receive your immigrant visa. If you want to enter the U.S. earlier than this, you will need to obtain a nonimmigrant visa (ideally one that does not prohibit immigrant intent, such as H-1B, L-1, or O-1) permitting you entry into the U.S.

Note that if you do enter the U.S. with a nonimmigrant visa that permits immigrant intent before starting or completing IVP, you can file an I-485 application from within the U.S. to adjust your status to permanent resident instead of doing IVP (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. The USCIS and DOS (Department of State) do understand that the green card process is very lengthy and can often take several years to complete. They also understand that, with the restrictions on employment authorization for any U.S. position, it is not necessarily practical for an international applicant to obtain a job offer with a U.S. employer. The USCIS would therefore not require you to obtain a job offer for any of the positions you applied for during your I-140 preparation or which you mentioned in your I-140 petition, particularly as it may be several years between the time that you apply for that position and file your I-140 and the time that your IVP interview is scheduled.

What is important for your petition is that, at the time you file your I-140, you would truly intend to work in any of the positions you indicate in your I-140 petition, assuming that the positions are offered to you and the circumstances are such that you would be able to accept the position and begin working for that employer. At the time that you attend your IVP interview, you do not necessarily have to have an offer for any of the positions for which you applied at the I-140 stage, but you should be able to provide updated evidence of potential employment (such as recent job applications) to show that you still intend to continue working in your field of expertise (as required for EB-1A and EB-2 NIW) and that the work you would be doing would be considered nationally important and would serve to advance the proposed endeavor indicated in your I-140 petition (and as required for EB-2 NIW).

You do not have to continuously apply to U.S. jobs between the time you start working on your I-140 petition and the time your IVP interview is scheduled, but we would suggest (a) accumulating some evidence of potential employment before you file your I-140 through the time that your I-140 is approved and then (b) again begin applying for jobs and reaching out to potential employers a couple of months before you expect your IVP interview to be scheduled so that you can provide your interviewer with updated job applications and potential employment evidence.

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

Yes. Our firm offers services to help you with both your initial I-140 petition under either EB-1A or EB-2 NIW and your IVP process to obtain your immigrant visa after your I-140 petition is approved.

Retaining our firm to assist you with your IVP includes the following services:

Communicating with the National Visa Center (NVC) regarding your IVP, assisting you with making the payment of your IVP fees (currently $345 per person), assisting you with the submission of the DS-260, advising you regarding the preparation of the IV (immigrant visa) supporting documents, reviewing, printing, and submitting the supporting documents to NVC, corresponding with the embassy/consulate after the case is transferred by NVC, assisting you with making the payment of your USCIS Immigrant Fee (currently $235 per person and only paid after the IV is issued.), and corresponding with USCIS regarding the issuance of the green card after entry to the US with the IV. Please note that we are unable to accompany you to the IV interview at the US consulate and our attorney fee does not include USCIS or DOS fees or document production fees (e.g., police certificates). We also cannot guarantee IV approval, as this is ultimately up to the officer processing your IVP, but our approval rates for our 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 located around the world and throughout the U.S. (including states where we do not have any offices). More than 95% of our cases are handled remotely, so we have no problems working with you no matter where you live. We are able to handle case preparation and communication with you primarily using our Case Management System, via email, and via 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:

The position needs to meet the requirements of the EB-1A or NIW categories. As mentioned above, to qualify for 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 would serve to advance the proposed endeavor indicated in your I-140 petition.
Your entry may depend on the nonimmigrant visa you are able to obtain to enter the U.S. and work in this position.

Broadly speaking, there are two classes of U.S. visas: those that permit immigrant intent (intent to immigrate to the U.S. and become a permanent resident) and those that only permit nonimmigrant intent (intent to enter the U.S. temporarily and leave upon completion of work or visa expiration).

After you file your I-140, generally the best visa for you to obtain would be under 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 both dual-intent visas (permitting immigrant and nonimmigrant intent at the same time), while O-1/O-3 does not strictly prohibit immigrant intent, so both these visas should be good options for entering the U.S. after you have filed your I-140 petition or otherwise demonstrated that you may have immigrant intent.

However, if you are an international applicant and you plan on completing the full green card process through IVP, you may enter the U.S. with a nonimmigrant status that only permits nonimmigrant intent, such as F-1/F-2, J-1/J-2, TN, etc. Usually, filing an I-140 may be considered a demonstration of immigrant intent to a certain degree, and if the USCIS determines that you have taken action to demonstrate your immigrant intent, your application for an F, J, or TN visa or your entry into the U.S. may be denied. However, we have found that applicants who file the I-140 and plan on completing IVP to obtain their immigrant visas usually have more freedom to obtain such visas and enter the U.S. from international travels with such visas, so, depending on the discretion of the USCIS and the program/employer who would be sponsoring your F, J, or TN visa, you may be able to obtain such a visa and enter the U.S. for your potential job with this visa. If you obtain a job offer, you should consult with the employer to understand your visa options with them.

In addition, if your priority date is not current at the time and you are not eligible to obtain your immigrant visa as a result, the USCIS would consider that you are not eligible to act upon your immigrant intent at the time that you apply for and enter the U.S. with a nonimmigrant visa only permitting nonimmigrant intent. This should also make your travel and your entry into the U.S. a feasible option with an F, J, or TN visa.

However, for all our clients who do wish to enter the U.S. for an employment position after they file their I-140 petition, we would suggest that the safest option for entry would be to obtain 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 do not have immigrant intent and only intend to use this visa for a short trip. However, when you use B1/B2 to enter the U.S. after you file I-140, there is a chance that your entry will be denied. You should bring all the necessary documents that show your trip is only meant for short-term purpose, such as a return ticket, detailed itinerary, employment letter from your home country, etc. Please note your entry to the U.S. is up to the border officer, and an officer can deny your entry exercising his/her discretion.

As with other visas only permitting nonimmigrant intent (F, J, TN, etc.), it should be more feasible for you to enter the U.S. with B1/B2 if your priority date is not current, since the border officer would recognize that you are unable to act on your immigrant intent (e.g. file an I-485) while you are in the U.S. However, regardless of whether you have a current priority date, it is always safest to travel with all the documentation that shows your trip is meant for short-term purposes, as described above.

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 can still file your I-140 petition while you are outside the U.S., and your nationality or location should not affect your chances of I-140 approval.

However, the suspension of entry regulations do affect applications for an immigrant visa. This means that you may not be eligible to finish your “Immigrant Visa Processing” (IVP) and obtain your immigrant visa unless you qualify for an exception or waiver of the executive order. (Note that if you are from Venezuela, your eligibility for an immigrant visa is not suspended, but you will be subject to additional security checks before your immigrant 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 who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

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

Denying entry would cause the foreign national undue hardship;
Entry would not pose a threat to the national security or public safety of the United States; and
Entry would be in the national interest.

At this time, of the few exception/waiver categories available, our firm has experienced two successful ways that an applicant may 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 demonstrating that you were in the U.S. on September 24, 2017 (the date the Presidential Proclamation went into effect) with a valid nonimmigrant visa.

While you can qualify for an exception/waiver for reasons other than the two listed and can still apply for a green card based on different qualifying factors, you should be advised that your immigrant visa application may be denied at the discretion of the border officer and that you will likely be subjected to lengthy administrative processing (sometimes lasting 2 or more years based on our experience with our own clients).

You should also keep in mind that the executive order is based on one’s nationality/citizenship, not one’s religion. For example, the executive order does apply to a Christian from Yemen, but does not apply 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

Additional Information

No Legal Advice Intended. This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues problems.