Think Immigration: Beyond the H-1B Visa: EB-1A and EB-2 NIW Green Cards

The recent announcement from U.S. Citizenship and Immigration Services (USCIS) that they would hold an H-1B lottery confirms that demand for the H-1B visa continues to surpass the 85,000 available slots. For employers and professionals, the lottery is associated with chronic uncertainties, as limits have not changed to match the needs of the U.S. economy. And this unpredictability is only deepened by recent structural changes such as the weighted selection process that prioritizes higher-paid and higher-skilled registrants. Additionally, a $100,000 payment now applies to certain new H-1B cases involving consular processing from abroad. While this fee does not apply to individuals already in the United States with an approved change of status, extension of stay, or amendment, it nevertheless changes the budget for international recruiting and introduces more uncertainty for business operations.

Because of these costs and uncertainties, relying on a single lottery outcome puts operational progress at risk. This makes it important to move toward stable options and adopt a permanent residency mindset, which provides more control over one’s presence in the United States while maintaining business leadership and growth. There are various nonimmigrant visa categories convenient for temporary work, but high-impact talent and founders opt for the EB-1A and EB-2 NIW as the most direct routes to establishing permanent residency and moving beyond the precarity of the lottery altogether.

EB-1A: Recognition for Extraordinary Ability

The EB-1A is designed for science, education, business, arts, or athletics professionals who have reached the top of their field. One of the advantages of the EB-1A is that it allows for self-sponsorship. This gives the applicant more control over their petition as they can apply for the green card themselves instead of relying on an employer’s filing.

And meeting the EB-1A’s eligibility criteria is a rigorous investigation of the petitioner’s experience and capabilities. It involves documenting a record of sustained national or international success through evidence like awards, press coverage, or a history of high compensation relative to peers. This encompassing evaluation follows the Kazarian two-step test (Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)), a procedural framework used by USCIS to ensure the quality of evidence demonstrates eligibility for extraordinary ability classification. In the first step, the officer determines if the petitioner has provided documentation that meets at least three of the ten regulatory criteria outlined in 8 CFR §204.5(h)(3). Once that threshold is cleared, the second step involves a "final merits review," where the evidence is looked at as a whole to decide if the individual truly possesses the level of acclaim required to be considered extraordinary. It is only after navigating this two-stage scrutiny that the petition can be approved and an applicant may be considered for a possible future green card.

For professionals like founders and researchers, the EB-1A is one of the most efficient ways to turn professional achievements into a permanent right to live and work in the United States, independent of a job offer or the labor certification process. As this classification is based on the individual’s own merits rather than a single employment contract, it can also lay the foundation for those planning to direct multiple ventures or projects in the United States over several years.

EB-2 NIW: National Importance and Innovation

The EB-2 National Interest Waiver (NIW) is another permanent residency option and designed for professionals whose work has the potential of a national benefit to the United States. Similar to the EB-1A, the NIW allows the applicant to waive the job offer and labor certification. But the NIW requires the applicant’s proposed endeavor to have substantial merit and nationwide significance. And substantial merit and nation-wide significance of an endeavor is tested through the three-prong Matter of Dhanasar standard, which serves as the legal blueprint for the waiver.

First, the proposed endeavor must have both substantial merit and national importance—shifting the focus from the individual’s job title to the broader impact of their work. Second, the applicant must be well-positioned to advance the endeavor, evidenced by their past success and current resources. And finally, it must be shown that, on balance, it would be beneficial to the United States to waive the standard job offer requirements. Meeting these criteria should effectively secure the waiver, allowing the candidate to bypass the labor market test and proceed toward permanent residency.

The EB-2 NIW is ideal for founders who can prove their venture is well-positioned to create jobs, drive revenue, or advance critical technologies including, but not limited to, AI, biotechnology, advanced computing, and clean energy. U.S. Citizenship and Immigration Services (USCIS) has recently clarified how entrepreneurs can qualify for the EB-2 NIW by documenting their company’s market traction, investment, and broader impact.

This makes the NIW one of the optimum tools for scaling a business while ensuring you have a permanent status that supports growth, as EB-2 NIW champions those whose impact is not bound to a single employer-employee relationship, focusing instead on the value the applicant brings to the U.S. economy. Furthermore, because the NIW Green Card prioritizes the merit of the work itself, it also allows founders to focus on long-term milestones like fundraising and product development without the distraction of temporary visa renewals.

Strategic Takeaways

To sum up, it is evident that some professionals are gradually moving away from a "which visa fits" approach toward a strategy that can safeguard their future careers and lives in the United States. Rather than viewing these options as secondary to the H-1B, they should be seen as direct ways to protect your ability to work and lead. Starting the Green Card process early can help you to build a portfolio of evidence—such as revenue growth, contracts, or peer recognition—while your business is growing. This proactive planning prevents your U.S. stay from being defined by administrative delays and lets you to invest in the innovation and growth that drive the market.

Ultimately, by aligning immigration timelines with fundraising and cutting-edge products, professionals—such as founders and entrepreneurs—can circumnavigate these complexities without letting lottery results dictate the pace of their careers and businesses. Moving toward evidence-based options like the EB-1A and EB-2 NIW can potentially ensure that your leadership remains in place regardless of regulatory changes.

This is not to say that applying for an EB-1 or EB-2 will be the right solution for any particular client’s situation. We don’t yet know, for example, how the Gold Card, or some other change in policy, might limit visa availability. We also recognize that there have been pauses on adjudications for individuals from certain countries, and reportedly there may be more denials in NIW and Kazarian on the final merits determination. However, practitioners and their client can meet this era of ever-increasing complexity by being prepared to look beyond the usual H-1B option and see what else may be out there.