Employment-Based Immigration Lawyer in Chicago: EB-1, EB-2 and National Interest Waivers

An employment-based green card petition is won or lost on the choice of category and on how closely the evidence answers that category’s legal standard. A researcher with strong publications may fall short of the sustained acclaim EB-1A requires and still present a strong National Interest Waiver case. That is why, before you or your employer pay for a full petition, we put in writing which category we recommend, what evidence is missing, and how likely the result is.

Choosing among EB-1A, EB-1B and EB-2

The first employment-based preference includes people of extraordinary ability (EB-1A). The statute requires extraordinary ability in the sciences, arts, education, business or athletics, shown by sustained national or international acclaim, an intent to continue work in that area, and a substantial prospective benefit to the United States (INA 203(b)(1)(A), 8 U.S.C. 1153(b)(1)(A)). The regulation defines extraordinary ability as belonging to the small percentage who have risen to the very top of the field (8 C.F.R. 204.5(h)(2)). The initial evidence is either a one-time achievement, such as a major internationally recognized award, or at least three of ten listed criteria such as judging the work of others, original contributions of major significance and scholarly authorship (8 C.F.R. 204.5(h)(3)). No job offer or labor certification is required, and the person may file on their own behalf with clear evidence of continuing work in the field (8 C.F.R. 204.5(h)(5)).

The outstanding professor and researcher category (EB-1B) is different. It requires international recognition as outstanding in a specific academic area, at least three years of teaching or research experience and an offer of a permanent teaching or research position (INA 203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B)). The evidence must meet at least two of six criteria, and a private employer qualifies only if the department or institute employs at least three people full time in research and has documented accomplishments (8 C.F.R. 204.5(i)(3)). The researcher cannot self-petition. The employer files.

The second preference (EB-2) covers members of the professions holding advanced degrees or their equivalent and people of exceptional ability in the sciences, arts or business (INA 203(b)(2)(A), 8 U.S.C. 1153(b)(2)(A)). A bachelor’s degree plus five years of progressive experience in the specialty equals a master’s degree, and exceptional ability means expertise significantly above that ordinarily encountered, shown by at least three of six types of evidence (8 C.F.R. 204.5(k)(2), (k)(3)(ii)). The statute adds that a degree or license alone is not sufficient evidence of exceptional ability (8 U.S.C. 1153(b)(2)(C)). As a rule, EB-2 requires a job offer supported by a labor certification unless the National Interest Waiver is granted.

How USCIS decides an EB-1A: counting criteria, then the final merits review

In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the court described a two-step review. First, the officer decides which evidence objectively meets the regulatory criteria. Then, in a final merits determination, the officer asks whether the record as a whole shows sustained acclaim and that the person is at the very top of the field. The court also held that the agency may not impose novel substantive or evidentiary requirements beyond those in 8 C.F.R. 204.5. Kazarian is a Ninth Circuit decision and Chicago sits in the Seventh, but USCIS applies the same two-step analysis nationwide through its Policy Manual (Volume 6, Part F, Chapter 2).

So meeting three criteria does not assure approval. A cited article and an invitation to review manuscripts can satisfy step one and fail at step two if nothing shows their weight in the field. When the criteria do not readily apply to an occupation, the regulation allows comparable evidence (8 C.F.R. 204.5(h)(4)), but the petition has to explain why the ordinary criteria do not fit.

The National Interest Waiver under Matter of Dhanasar

The statute allows the requirement that a person’s services be sought by a U.S. employer to be waived when that is in the national interest (8 U.S.C. 1153(b)(2)(B)(i)). In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office vacated the earlier Matter of New York State Dept. of Transportation framework and set three requirements: the proposed endeavor has substantial merit and national importance, the person is well positioned to advance it, and on balance it would benefit the United States to waive the job offer and labor certification. USCIS follows that framework in its Policy Manual, Volume 6, Part F, Chapter 5.

Each prong asks a different question. National importance is measured by the endeavor’s potential prospective impact and its broader implications, not merely its geographic reach. Being well positioned turns on education, a record of success, a concrete plan and interest from those who can fund or adopt the work. The third prong allows arguments that labor certification would be impractical, that the country would benefit even if other qualified U.S. workers were available, or that urgency justifies forgoing the process. That is why the waiver draws founders and researchers. It does not depend on a job offer or a labor certification.

Physician National Interest Waivers for shortage areas

Physicians have their own route. USCIS must grant the waiver if the physician agrees to work full time in an area designated by the Department of Health and Human Services as having a shortage of health care professionals or at a Veterans Affairs facility, and a federal agency or a state department of public health has determined that the work is in the public interest (8 U.S.C. 1153(b)(2)(B)(ii)). In Illinois, that state department is the Illinois Department of Public Health. The regulation requires an aggregate of five years of full-time clinical service and a public interest letter dated within six months before the petition is filed, and it bars approval of adjustment of status until the service is complete (8 C.F.R. 204.12).

For the health care organization hiring the physician, the employment contract, the practice location and the service calendar become immigration evidence. A change of site or employer during those years should be reviewed before it happens, not after.

PERM labor certification when the employer sponsors

Without a waiver, ordinary EB-2 runs through Department of Labor certification. The Secretary of Labor must certify that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the employment will not adversely affect the wages and working conditions of similarly employed U.S. workers (20 C.F.R. 656.1). The employer obtains a prevailing wage determination (20 C.F.R. 656.40), completes the required recruitment and then files ETA Form 9089 (20 C.F.R. 656.17). The date the Department of Labor accepts the application becomes the employee’s priority date (8 C.F.R. 204.5(d)).

This is where HR coordination matters as much as the law. The job requirements and recruitment records belong to the employer, and the academic and work history belongs to the employee. If they do not match from the start, the mismatch surfaces months later.

Priority dates, the Visa Bulletin and premium processing

An approved petition does not mean a visa is available. The Department of State publishes a monthly Visa Bulletin with two charts by category and country: final action dates and dates for filing. USCIS announces each month which chart governs adjustment of status filings. Dates can move forward or backward. The seven percent per-country limit means the wait also depends on country of birth.

Premium processing speeds the decision on Form I-140, not the Visa Bulletin line. According to USCIS, it is available for EB-1A, EB-1B and EB-2 petitions not seeking a waiver on a 15 calendar day timeframe, and for EB-2 National Interest Waiver petitions on a 45 calendar day timeframe.

After the I-140: adjustment of status or an immigrant visa abroad

A person in the United States who is eligible can apply to adjust status on Form I-485. If approval of the petition would make a visa immediately available, the I-485 may be filed with the I-140 or afterward (8 C.F.R. 245.2(a)(2)(i)(B)). A person abroad applies for an immigrant visa at a U.S. consulate. A qualifying spouse and children may accompany or follow to join the principal beneficiary in the same category and order of consideration (8 U.S.C. 1153(d)). We recommend deciding the path before the I-140 is filed, because travel and employment turn on that choice.

How we handle an EB-1 or NIW matter

• Strategy and eligibility memo. We review your CV, publications, citations, awards, press, roles and current status, and tell you in writing which category we recommend, what is missing and how strong the case is today.
• Evidence architecture. Every document is mapped to the criterion or prong it proves.
• Expert letters. We help you choose independent and close-collaborator writers so each letter corroborates documented facts rather than repeating praise.
• HR and employee coordination. In sponsored cases, we set out in writing at the start whom we represent and how information is shared.
• Fees by stage. We quote each stage in writing, from the memo to the petition to adjustment or consular processing.

Our employment-based immigration practice in Chicago is led by the founding attorney, Abdul Kadir Mohamed, who served as in-house general counsel and privacy officer for multi-site healthcare organizations and knows from the inside how physicians are hired and how a position is documented. Letter planning draws on our recommendation letter planning worksheet.

Common questions about EB-1, EB-2 and NIW petitions

Can I file without an employer?

For EB-1A, yes. The regulation requires no job offer and you may file on your own behalf. The National Interest Waiver removes the job offer and labor certification requirements. EB-1B, by contrast, requires an employer to file with an offer of a permanent position.

If I meet three EB-1A criteria, is approval assured?

No. Meeting three criteria clears the first step. In the second, USCIS weighs the whole record to decide whether it shows sustained acclaim and that you are at the very top of your field.

Does premium processing make my green card faster?

It speeds the decision on the I-140. If your category and country have a line in the Visa Bulletin, the green card still depends on your priority date.

I am a physician who served under a J-1 waiver. Does that time count toward the physician NIW?

Time in J status does not count toward the five years the statute requires. What counts is full-time service in a designated shortage area or at a Veterans Affairs facility outside that status.

What should I send for the pre-screen?

Your CV, publications or projects with citations or metrics, awards, press coverage, role letters or relevant contracts, and your current immigration status. Please do not send sensitive documents through the web form.

Related resources

General information only; not legal advice and does not create an attorney-client relationship. Immigration rules and agency practice change often.