Upgrading from EB-2 to EB-1: Applying for EB-1 While EB-2 is at NVC – Filing Process Explained

Key Takeaways:

• Understand the process and qualifications for upgrading from EB-2 to EB-1 visa category, specifically for individuals with extraordinary abilities.
• It is possible to apply for an EB-1 visa while your EB-2 application is at the National Visa Center (NVC).
• Consider eligibility, timing, cost, and strategic suitability when deciding to upgrade from EB-2 to EB-1. Seek guidance from an immigration attorney.

Transitioning from EB-2 to EB-1: Is It Possible?

Embarking on the journey to U.S. permanent residency can be fraught with complexities, coupled with the anticipation of what the future holds in a new country. For professionals approved under an EB-2 National Interest Waiver (NIW), the possibility of an upgrade to an EB-1 visa category, especially when your case is active at the National Visa Center (NVC), begs exploration. If you’re at this juncture, you might be considering whether to apply for EB-1 while your EB-2 is at NVC, and whether such a move is even plausible. Here, we’ll delve into the nuances of making this critical decision.

Understanding the EB-1 Extraordinary Ability Filing Process

The EB-1 visa is earmarked for individuals with extraordinary abilities in their field, outstanding professors and researchers, or certain multinational executives and managers. Having an approved I-140 for an EB-2 NIW and contemplating an EB-1a application means that you’re considering the category for those with extraordinary abilities. To qualify, your achievements must be well-documented, and you must meet at least three of the ten USCIS criteria or provide evidence of a one-time achievement, like a prestigious award.

Before pursuing the EB-1 extraordinary ability filing process, it’s wise to assess your qualifications against these stringent requirements. If your professional accomplishments have significantly advanced since your EB-2 application, or you believe you’ve always met the high bar for an EB-1a, filing for an upgrade could be a strategic step.

Can You Apply for EB-1 While EB-2 is at NVC?

Now, to the heart of the matter: can you apply for an EB-1 visa while your EB-2 application is at the National Visa Center? The answer is a resolute yes. There is no regulatory prohibition against filing multiple petitions for different visa categories. This process is sometimes referred to as an EB-2 to EB-1 upgrade, although it’s more of an additional application than a simple upgrade. A new I-140 petition must be filed for the EB-1 application, and one does not automatically translate to the other.

The Plausibility of Upgrading from EB-2 to EB-1

The feasibility of this upgrade hinges on a few key considerations:

• Eligibility: Are you truly qualified for EB-1? Remember, the criteria are more stringent than for EB-2.
• Timing: Consider the time-sensitive nature of your current NVC process and how an EB-1 application might fit into this timeline.
• Cost: Bear in mind the additional cost associated with filing a new I-140 and whether the potential benefits outweigh these costs.
• Strategic suitability: Sometimes, an EB-1 application could result in a faster green card due to the typically shorter waiting times associated with this category.

In some cases, individuals under the International Visa Program (IVP) and currently outside the U.S. find the EB-1 route indeed plausible and pursue it to potentially expedite their immigration process.

Weighing Your Options

When considering whether to apply for EB-1 while EB-2 is at NVC, consult with an immigration attorney who can assess the strength of your case against EB-1 criteria. For official guidelines and the latest updates on visa processing, visiting [USCIS’s EB-1] (https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1) page is essential.

In conclusion, it’s not only possible but plausible to file for an EB-1 while your EB-2 case is active at the NVC, provided you meet the eligibility criteria. Successful applicants may find that this bold move is the golden ticket to achieving their American dream sooner than anticipated. Whether to take this step is a personal decision that should be made with careful deliberation and the advice of an expert in immigration law.

Still Got Questions? Read Below to Know More

Are there any risks to my existing EB-2 application if I decide to apply for an EB-1 and the new application is denied? Could it affect my current waiting period or status at NVC?

When you have an existing EB-2 (Employment-Based, second preference) visa application and are considering applying for an EB-1 (Employment-Based, first preference) visa, there are a few important points to consider:

1. Independent Applications: Generally, each visa application is considered independently. Applying for an EB-1 does not automatically impact your EB-2 application. These are separate processes, and a denial of your EB-1 application will not invalidate or cancel your EB-2 application. However, it is crucial to maintain your eligibility for the EB-2 during the entire process.

2. Waiting Period and Status: Your waiting period or status with the National Visa Center (NVC) for the EB-2 application should remain unaffected by a new EB-1 application. Each application’s processing time is independent unless you take specific action that invalidates your EB-2 application, such as withdrawing it or no longer meeting the criteria for that category after applying for EB-1.

3. Consistency and Honesty in Applications: It’s important to ensure all information provided in your applications is consistent and truthful. Discrepancies between your EB-2 and EB-1 applications could raise concerns about the validity of your claims, which could potentially impact both applications.

According to the United States Citizenship and Immigration Services (USCIS), which is the authority on immigration and visa applications:

“It’s essential to maintain a valid immigration status throughout your entire time in the United States and while your applications are pending.”

For official guidelines and detailed information on visa applications and processes, always refer to the USCIS website or consult the U.S. Department of State – Bureau of Consular Affairs, which provides resources and tools for applicants at different stages.

USCIS Official Website: https://www.uscis.gov/
U.S. Department of State – Bureau of Consular Affairs: https://travel.state.gov

How would changing jobs or receiving a major international award affect my chance to transition from an EB-2 to an EB-1, and what steps should I take immediately following such a change?

Changing jobs or receiving a major international award can significantly impact your chances of transitioning from an EB-2 to an EB-1 visa category. The EB-1 category is reserved for individuals with extraordinary ability, outstanding professors and researchers, or certain multinational executives and managers. If you have received a major international award comparable to a Nobel Prize, for example, it might directly qualify you for an EB-1 visa under the extraordinary ability subcategory.

However, if the award is less well-known, you would need to demonstrate that it is a significant and well-recognized accolade within your field. Changing jobs, particularly if it’s to a more prominent position or to a role that allows you to further demonstrate outstanding achievements, can also bolster your EB-1 application. It’s important that your new job continues to showcase your extraordinary abilities or qualifications as a researcher or executive to meet the criteria set for the EB-1 category.

Here are the immediate steps you should take following such a change:

1. Document the Change or Award: Gather all relevant documentation relating to your new job or international award. This includes offer letters, job descriptions that reflect your role and responsibilities, and evidence of the award and its significance in your field.
2. Consult an Immigration Attorney: It’s advisable to seek professional guidance from an immigration attorney who can help you assess how the change affects your immigration status and what documentation you need to provide.
3. File Form I-140 (Immigrant Petition for Alien Worker): You will need to file a new Form I-140 with the United States Citizenship and Immigration Services (USCIS) to petition under the EB-1 category. Ensure to include all supporting evidence of your extraordinary ability, award, or new job’s managerial or executive level status.

Remember, each individual case is unique, so make sure to get personalized advice based on your specific situation.

For more information on each category and the process, you can visit the official USCIS page for the EB-1 visa: USCIS – Employment-Based Immigration: First Preference EB-1.

If I’m already in the U.S. on an EB-2 visa and just started a new job with significantly higher responsibility, should I consider applying for an EB-1 right away, or wait to build more evidence at my current position?

Deciding whether to apply for an EB-1 visa following a job change with increased responsibility depends on how well you meet EB-1 criteria. The EB-1 visa category is reserved for three types of individuals: individuals with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

Before applying for an EB-1, consider the following:

1. Assess your qualifications: Review the specific criteria for the EB-1 category you’re targeting. For extraordinary ability (EB-1A), you must demonstrate exceptional talent in your field through sustained acclaim and recognition. For outstanding professors and researchers (EB-1B), you need international recognition for your academic achievements. For multinational executives and managers (EB-1C), you must have been employed outside the United States in the three years preceding the petition for at least one year by a firm or corporation and you are seeking to enter the U.S. to continue service to that firm or organization.

2. Gather evidence: If your new job responsibilities have elevated your career to a level that may qualify you for an EB-1, you need to provide substantial evidence. This could include major awards, published material about you, leading roles in distinguished organizations, significant contributions to your field, and high remuneration among others. A period of exceptional performance in your new role can strengthen your application.

3. Consult with an attorney: Immigration law is complex, and an experienced attorney can help assess your situation better and provide guidance on the timing of your application. They can also help you prepare a compelling case that highlights your qualifications under the EB-1 criteria.

For the EB-1 category, U.S. Citizenship and Immigration Services (USCIS) is the authoritative immigration source. You can visit their official website for detailed information about eligibility and application procedures:

• EB-1A: Extraordinary Ability
• EB-1B: Outstanding Professors and Researchers
• EB-1C: Multinational Manager or Executive

Remember that even if you commence an EB-1 application, you can continue to work on your EB-2 visa until your EB-1 process is complete. This doesn’t have to be an either/or situation, so you should consider your options carefully and plan strategically based on your long-term career goals and immigration objectives.

I came to the U.S. for a post-doc under an EB-2 NIW but have since made significant research breakthroughs. Who can I talk to for evaluating if these accomplishments qualify me for an EB-1, and what documentation would I need to prove it?

If you’re in the U.S. on an EB-2 National Interest Waiver (NIW) and believe your significant research breakthroughs might qualify you for an EB-1 visa, your best course of action is to consult with an immigration attorney specializing in employment-based immigration. An experienced attorney can evaluate your specific situation against the criteria for an EB-1 visa and provide guidance on the feasibility of an application. The American Immigration Lawyers Association (AILA) website is an excellent resource to find a qualified attorney: AILA’s Immigration Lawyer Search.

For an EB-1 visa under the category of “Extraordinary Ability” or “Outstanding Professor or Researcher”, you will need to provide documentation that demonstrates your achievements. Some of the evidence you may need to gather includes:

• Publications in major journals or media
• Awards or honors in the field of expertise
• Membership in associations that require outstanding achievements
• High salary evidence indicating exceptional ability
• Letters of recommendation from peers or experts in your field
• Evidence of original contributions of major significance to your field

It’s important to note that not all accomplishments may qualify you for the EB-1 category, as the standards are extremely high. The U.S. Citizenship and Immigration Services (USCIS) provides detailed information regarding the required evidence for an EB-1 visa here.

Remember, compiling the right documentation is crucial to demonstrate your eligibility. Your attorney can assist you with tailoring your application to meet the EB-1 criteria and improve your chances of a successful outcome. Keep all your records, citations, and any third-party letters up-to-date and ready to provide strong evidence of your contributions and recognition in your field.

My spouse is my dependent under my current EB-2 application, but their career has taken off recently. Can they apply for an EB-1 independently while we wait for the EB-2 process, and how could this affect our family’s immigration status?

Yes, your spouse can independently apply for an EB-1 visa even while being listed as a dependent on your EB-2 visa application. The EB-1 visa category is designed for individuals with extraordinary abilities, outstanding professors and researchers, or certain multinational executives and managers. If your spouse’s career advancements align with the EB-1 criteria, they may pursue this avenue.

Here are the steps your spouse should take:

1. Determine eligibility: They should review the eligibility criteria for the EB-1 category to ensure that they qualify. This typically involves demonstrating extraordinary ability in the arts, sciences, education, business, or athletics through sustained national or international acclaim, or meeting other specific criteria for professors, researchers, or multinational executives.
2. File the petition: If eligible, your spouse will need to file Form I-140, Immigrant Petition for Alien Worker, with the United States Citizenship and Immigration Services (USCIS). This is the foundational step in seeking an employment-based green card.
3. Adjust status or consular process: Once the I-140 is approved and a visa number is available, your spouse can either adjust their status in the United States using Form I-485 if they are already in the U.S. or go through consular processing if they are outside the country.

Applying for an EB-1 visa independently may not directly affect your family’s immigration status under the EB-2 process. It can, in fact, be beneficial as it could provide a faster route to obtaining a green card, especially if the EB-1 category is current and has shorter waiting times compared to the EB-2 category for your country of chargeability.

However, it’s important to maintain the validity of your existing non-immigrant status while the EB-2 process is ongoing to ensure that you and your family remain legally in the United States. Additionally, if your spouse’s EB-1 petition is successful, they may include you as a dependent on their application, potentially translating into a green card for your entire family through this alternate path.

For authoritative information and additional details, please visit the official USCIS page on employment-based immigration:
– Employment-Based Immigration: First Preference EB-1
– USCIS Form I-140, Immigrant Petition for Alien Workers

Always consult with an immigration attorney for personalized advice regarding your specific circumstances.

Learn Today:

Glossary or Definitions

1. EB-2 National Interest Waiver (NIW): A category of employment-based visa that allows professionals with exceptional abilities in their field to bypass the labor certification process generally required for employment-based visas.

2. EB-1 Visa: An employment-based immigrant visa category for individuals with extraordinary abilities in their field, outstanding professors and researchers, or certain multinational executives and managers.

3. I-140: The form used to petition for an employment-based immigrant visa and demonstrate eligibility for a specific employment-based visa category.

4. USCIS: United States Citizenship and Immigration Services, the government agency responsible for overseeing immigration and naturalization processes in the United States.

5. Extraordinary Ability: A term used to describe individuals who possess exceptional abilities in their fields, demonstrated by sustained national or international acclaim and achievements recognized by experts in their respective fields.

6. National Visa Center (NVC): A government agency responsible for processing immigrant visa applications and supporting documents before they are forwarded to the appropriate U.S. embassy or consulate for visa issuance.

7. Upgrade: The act of transitioning or applying for a higher-level visa category while an existing visa application is still pending, such as moving from EB-2 to EB-1.

8. Eligibility Criteria: The specific requirements and qualifications that an individual must meet in order to be considered eligible for a particular visa category.

9. I-140 Petition: A formal request submitted to USCIS to seek approval for an employment-based immigrant visa.

10. International Visa Program (IVP): A program that provides opportunities for foreign individuals to obtain visas for employment purposes in the United States.

11. Immigration Attorney: A legal professional who specializes in immigration law and provides assistance and guidance to individuals seeking to navigate the immigration process.

12. Green Card: An informal term for a Permanent Resident Card, which signifies that an individual is a lawful permanent resident of the United States with the right to live and work permanently in the country.

13. Expedite: To accelerate or speed up a process, in this case, the immigration process, to reduce waiting times and obtain a decision more quickly.

14. American Dream: The concept that the United States offers opportunities for individuals to achieve success, prosperity, and a better life through hard work and perseverance.

15. Immigration Law: The body of law that governs immigration, naturalization, and the rights and obligations of foreign individuals in a country.

Please note that this is a general glossary and is not meant to be an exhaustive list of all immigration-related terms and concepts.

In the world of US immigration, transitioning from EB-2 to EB-1 is not only possible, but it can be a savvy move for those with extraordinary abilities. By understanding the filing process, assessing your qualifications, and weighing the key considerations, you can make an informed decision. Consult with an immigration attorney and explore more on visaverge.com to navigate the path towards your American dream.

This Article in a Nutshell:

Transitioning from EB-2 to EB-1 is possible. An approved EB-2 NIW can be upgraded to an EB-1a visa. File a new I-140 for the EB-1 application. Consider eligibility, timing, cost, and strategic suitability. Consult an immigration attorney for guidance. Get official USCIS guidelines on their website. Make an informed decision for your American dream.