What Are EB-1 and EB-2 Green Cards?
EB-1 and EB-2 are employment-based green card categories that allow certain candidates to bypass the H-1B process entirely. EB-1A (extraordinary ability) and EB-2 NIW (national interest waiver) are particularly valuable because they have no per-country backlog for most regions, though India and China may see temporary retrogressions. For HR leaders facing increased H-1B fees and lottery uncertainty, these pathways offer an alternative worth discussing with immigration counsel.
Executive Summary
- Problem: The new $100,000 statutory fee on certain new and consular H-1B filings, combined with lottery uncertainty, makes traditional sponsorship cost-prohibitive for many roles. For Indian and Chinese nationals, EB-2/EB-3 backlogs of 5-12+ years make traditional PERM green cards impractical without a work visa to maintain status.
- Solution: For exceptional candidates, EB-1 and EB-2 NIW categories offer faster paths to permanent residency with no lottery risk and historically shorter backlogs compared to H-1B-based paths.
- HR's Role: Take the lead in identifying candidates who may qualify and supporting their applications. Employer involvement increases success rates and improves retention.
Why This Matters for Indian and Chinese Nationals
The green card backlog creates a critical timing problem for Indian and Chinese nationals.
Current backlog estimates (February 2026 Visa Bulletin):
The OPT timing problem: F-1 students receive 12 months of OPT plus 24 months of STEM OPT extension, totaling 36 months maximum. If an Indian national starts the PERM process on OPT, their work authorization will expire years before their green card becomes available.
Why work visas matter: Candidates need a work visa (H-1B, L-1, or O-1) to maintain legal status while waiting for their priority date to become current. H-1B can be extended beyond the normal 6-year limit if the employee has an approved I-140 or has been waiting 365+ days for labor certification. This allows employees to remain in the US legally during the decade-plus wait.
Why EB-1 and NIW are attractive: These categories are often current for most countries and have significantly shorter wait times for India and China, though occasional retrogressions can occur depending on visa bulletin movement. For qualified candidates, they offer a faster path to permanent residency than traditional PERM-based routes.
EB-1 Categories
EB-1A: Extraordinary Ability
This is a self-petition category, but employer support significantly strengthens the application.
Who qualifies: Individuals with extraordinary ability in sciences, arts, education, business, or athletics. In tech, this typically means researchers, senior engineers, or founders with documented achievements.
Evidence required: At least 3 of 10 criteria, including awards, publications, patents, high salary, original contributions, or judging others' work.
HR's role: Employers should take the lead in identifying candidates and supporting their applications. Provide documentation of the employee's achievements, expert letters from colleagues, and evidence of their contributions. Consider covering legal fees as a retention investment.
EB-1B: Outstanding Professors and Researchers
This requires employer sponsorship.
Who qualifies: Researchers with at least 3 years of experience and international recognition in their field.
Evidence required: Documentation of recognition, publications, contributions, and a permanent research position or tenure-track role.
HR's role: If you employ researchers at universities or research-focused companies, discuss EB-1B eligibility with your immigration counsel. This path skips the H-1B lottery and PERM process.
EB-1C: Multinational Managers and Executives
This requires employer sponsorship and is similar to L-1A but leads directly to a green card.
Who qualifies: Managers or executives who have worked abroad for a related company for at least 1 year and are transferring to a US managerial or executive role.
HR's role: If you have foreign offices, EB-1C may be an option for senior leaders transferring to the US.
EB-2 Categories
EB-2 NIW: National Interest Waiver
This is a self-petition category, but employer support significantly improves success rates.
Who qualifies: Professionals with advanced degrees or exceptional ability whose work benefits the US national interest. In tech, this includes researchers, engineers working on critical technologies, AI, cybersecurity, or entrepreneurs.
Evidence required: Advanced degree or exceptional ability, plus evidence that the work has substantial merit, national importance, and that waiving the job offer requirement benefits the US.
HR's role: Take an active role in supporting NIW applications. Provide letters documenting the employee's contributions, evidence of their work's impact, and support throughout the process. Employees who feel supported are more likely to stay with your company after approval.
Standard EB-2: Advanced Degree Professionals
This requires employer sponsorship and PERM labor certification.
Who qualifies: Professionals with a master's degree or higher, or a bachelor's degree plus 5 years of progressive experience.
Backlog reality: As of February 2026, the EB-2 priority date for Indian nationals is December 2013, meaning a 12+ year wait after PERM approval. Chinese nationals face 5-8 year waits.
HR's role: For Indian and Chinese nationals, standard EB-2 only makes sense if the employee already has a work visa (H-1B, L-1) that can be extended while they wait. Starting PERM for someone on OPT alone is not viable given the backlog length.
When Direct Green Card Makes Sense
Why Employers Should Lead the Effort
Even for "self-petition" categories like EB-1A and NIW, employer involvement matters for three reasons:
1. Stronger applications. Employer-provided documentation (achievement letters, impact evidence, expert recommendations) strengthens the petition. Attorneys report higher approval rates when employers actively participate.
2. Better retention. Employees who feel supported through the green card process are more loyal. If you help them succeed, they're more likely to stay after approval than if they pursued it alone.
3. Competitive advantage. Offering EB-1A or NIW support as part of your immigration benefits differentiates you from employers who only offer H-1B. For exceptional candidates, this can be the deciding factor.
What employer support looks like:
- Identify candidates who may qualify based on achievements
- Provide documentation of contributions and impact
- Write or coordinate expert letters
- Cover legal fees (or share costs)
- Allow time for the application process
- Communicate your support clearly as part of retention strategy
The Work Visa Bridge Strategy
For candidates who qualify for EB-1A or NIW but need time for processing, consider a parallel strategy:
Step 1: File H-1B (or O-1 if they qualify) to establish work visa status.
Step 2: Concurrently file EB-1A or NIW petition.
Step 3: If EB-1A or NIW is approved and the category is current, the employee can adjust status to permanent resident.
Step 4: If there's any delay, the work visa maintains their legal status while waiting.
This approach is particularly valuable for Indian and Chinese nationals, who face unpredictable processing times even in current categories.
What HR Leaders Should Know
Timelines
EB-1 and EB-2 NIW categories are often current for most countries and have historically shorter wait times for India and China, though temporary retrogressions can occur. Processing times vary, but approval can come within 6-18 months when categories are current.
As of February 2026, standard EB-2 and EB-3 have significant backlogs for India (12+ years) and China (5-8 years).
Costs
Self-petition categories (EB-1A, NIW) can shift costs to the employee, but employers who cover costs see better retention. Employer-sponsored categories (EB-1B, EB-1C, standard EB-2) require company investment in legal fees and potentially the PERM process.
Compare total cost of ownership against H-1B sponsorship, including the new statutory fees on certain filings, lottery risk, and multi-year renewals.
Working with Your Immigration Counsel
HR's job is not to assess EB-1 or EB-2 eligibility. That's attorney work. Your job is to:
- Proactively identify candidates who might qualify based on achievements
- Raise the question with your immigration attorney before candidates ask
- Provide documentation and support throughout the process
- Understand the timeline and cost implications for budget planning
Ask your attorney: "Given this candidate's profile and country of birth, should we explore EB-1 or NIW instead of or alongside H-1B?"
Frequently Asked Questions
Why can't Indian nationals just start PERM on OPT and wait?
OPT plus STEM OPT provides a maximum of 36 months of work authorization. As of February 2026, the EB-2 backlog for India exceeds 12 years. Without a work visa to maintain status, the employee would have to leave the US years before their green card becomes available.
Can we file H-1B and EB-1A at the same time?
Yes. Many employers file H-1B for immediate work authorization while concurrently pursuing EB-1A or NIW for a faster path to permanent residency. The work visa provides status security while the green card is processed.
If an employee self-petitions for EB-1A or NIW, can they still work for us?
Yes. Self-petition green cards allow the holder to work for any employer. If your employee successfully self-petitions, they remain employed with you but with permanent resident status. Employer support during the process improves retention.
Should we pay for EB-1A or NIW legal fees?
Consider it a retention investment. Employees who receive employer support through the green card process are more likely to stay. Compare the legal fees to the cost of recruiting and training a replacement.
How do H-1B extensions work during the green card backlog?
H-1B is normally limited to 6 years. However, if the employee has an approved I-140 (the second step of employer-sponsored green cards) or has been waiting 365+ days for labor certification, they can extend H-1B in 1-year or 3-year increments until their green card is approved.
Key Takeaway
For exceptional candidates, EB-1 and EB-2 NIW offer faster paths to permanent residency without lottery risk and with historically shorter backlogs than traditional PERM-based routes. Employers should take the lead in identifying candidates, providing documentation, and supporting applications. For Indian and Chinese nationals facing decade-long EB-2 backlogs, these categories may be the only practical path to permanent residency within a reasonable timeframe.
Up Next: Supporting employees through immigration uncertainty: an HR guide to communication and mental health resources. [Read more →]
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration rules change frequently. Consult with a qualified immigration attorney for guidance on specific cases.
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