Explaining the Different Emphases of EB-1A and NIW Applications Through a Case Example
Using the case of a Harvard MD resident responding to a Notice of Intent to Deny, the article explains that EB-1A focuses on achievements already attained while NIW focuses on proposed future work and its national importance, and addresses how to handle unpublished work and a change of research direction in each type of petition.
Today, through a case sharing, we will distinguish the different focuses of EB-1A and NIW applications. Nowadays, more and more applicants apply for both EB-1A and NIW at the same time. In the eyes of some applicants, there is essentially no difference between these two applications, and they may not treat them differently when preparing materials, believing that only the approval rate and difficulty differ. This view is not entirely correct.
Clients sometimes ask us questions such as: if my current work has not yet been published, should I emphasize it in the petition? Or, if I have changed research direction, my earlier work produced more papers and more influential publications, while my current work has not yet yielded major results, which direction should the petition focus on? These questions ultimately all concern the respective emphases of EB-1A and NIW.
Overall, EB-1A examines achievements the applicant has already made and requires meeting the extraordinary ability criteria. One item we often emphasize is "contribution of major significance," meaning the applicant must have produced influential work. NIW, by contrast, looks at future work (proposed work), and its requirements consist of three prongs:
- The proposed work needs to benefit the U.S. national interest (proposed work has both substantial merits and national importance).
- Whether you are well positioned for your proposed work (are you well positioned to advance the proposed endeavor). If you have previously produced research results in this area and published influential work, that can demonstrate that you are suitable for this work, but this is a sufficient but not necessary condition.
- On balance, it is beneficial to the United States to waive the requirements of a job offer and labor certification.
An example makes the difference between the two petitions clearer. One applicant was a resident physician at Harvard with an MD degree, focusing on oncology research. Because most of his time went to clinical work, he had relatively few publications: 4 articles and 16 citations in total. When he first filed the NIW, he received a Notice of Intent to Deny, because this background was not particularly outstanding in oncology research.
In responding to the Notice of Intent to Deny, we could not follow the EB-1A approach; instead, we had to address the three prongs of NIW one by one:
First, we prepared a detailed research plan listing the projects he is currently conducting and those he may undertake in the future, as well as the funding status of these projects.
Second, we highlighted the applicant's overall qualifications: his Harvard MD degree, his work experience combining clinical practice and research, and the strengths of his institution. Most importantly, his proposed project had already received funding, and the project's PIs were all well-known researchers in the field.
Finally, we addressed other questions raised by the immigration officer, such as whether an MD degree counts as an advanced degree, and how his time was divided between clinical work and research, and whether he met the definition of researcher.
After we submitted the response, his NIW was approved smoothly. This case shows that the background for an NIW does not have to be exceptionally strong, but the applicant needs to draw on his or her favorable conditions to explain what work he or she intends to do (proposed work) and why he or she is suited to it.
Returning to the questions raised at the beginning:
First, for work that is ongoing but not yet published, it is not advisable to emphasize it heavily in an EB-1A petition, because its influence is hard to prove; but it may be mentioned in an NIW petition, because it falls under proposed work.
Second, if the applicant has changed research direction, the EB-1A petition should highlight the influential research direction and treat the current work as an extension of it; in an NIW petition, the current work can be presented as the area of expertise, while the earlier achievements serve as examples showing that you are well positioned to perform the proposed work.
In terms of specific practice, there are still some details to note because each petitioner's background and work category are different. If you have questions in this regard, you can contact us for an evaluation.
