Can You File EB1 and EB2 at the Same Time?

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The U.S. immigration system allows individuals to pursue multiple immigration pathways simultaneously. This means a person can have multiple I-140 petitions filed on their behalf in different categories, such as EB-2 and EB-1, as long as they meet the eligibility criteria for each category.

Multiple I-140 Petition Filings

There is no regulatory limit on the number of I-140 petitions that can be filed for a single beneficiary, by one or more petitioners (or self-petitioned where possible). An individual can have both an EB-2 and an EB-1 petition filed concurrently or sequentially.

EB-2: Typically for professionals with advanced degrees or individuals with exceptional ability. It may require a labor certification unless applying for a National Interest Waiver (NIW).
EB-1: Includes subcategories such as extraordinary ability, outstanding professors or researchers, and multinational executives or managers. Each subcategory has specific criteria that must be met.

Priority Dates

The priority date from an approved I-140 petition can be retained and applied to any subsequent I-140 petitions filed on behalf of the same beneficiary. This can be advantageous if the priority date is earlier than the current date for the new category.

Strategic Considerations

Filing in multiple categories can be a strategic decision to increase the chances of obtaining a green card, especially if one category has longer retrogression or delays. It is important to ensure that each I-140 petition is supported by the necessary documentation and evidence to meet the specific requirements of the category.

An individual can have both an EB-2 and an EB-1 I-140 petition without conflict, as long as they meet the eligibility criteria for each category. The ability to retain the priority date from an earlier petition can be beneficial in expediting the process.

Upgrading to EB-1

An EB-2 I-140 petition cannot be directly "upgraded" to an EB-1 I-140 petition. Instead, a new EB-1 I-140 petition must be filed, meeting the specific requirements for the EB-1 category. Here is a detailed analysis of the process:

The EB-2 and EB-1 categories are distinct employment-based immigrant visa classifications, each with its own set of eligibility criteria. The EB-2 category is generally for professionals holding advanced degrees or individuals with exceptional ability, while the EB-1 category includes subcategories such as extraordinary ability (EB1A), outstanding professors or researchers (EB1B), and multinational executives or managers (EB1C).

Eligibility Requirements

EB-1A (Extraordinary Ability): Requires evidence of extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. No job offer is required.
EB-1B (Outstanding Professors and Researchers): Requires international recognition for outstanding achievements in a particular academic field, with at least three years of experience in teaching or research in that area. A job offer from a U.S. employer is required.
EB-1C (Multinational Executives and Managers): Requires employment with a qualifying organization outside the U.S. in a managerial or executive capacity for at least one year in the three years preceding the petition. A job offer from a U.S. employer is required.

Filing a New I-140 Immigrant Petition

A new Form I-140 must be filed for the EB-1 category. This is not an amendment or upgrade of the existing EB-2 petition but a separate filing that must independently meet all EB-1 requirements. Supporting documentation must be provided to demonstrate eligibility under the chosen EB-1 subcategory.

Priority Date Consideration

The priority date from the approved EB-2 I-140 can often be recaptured and applied to the new EB-1 I-140 petition. This can be beneficial if the priority date is earlier than the current date for the EB-1 category.

To transition from an EB-2 to an EB-1 category, a new I-140 petition must be filed under the EB-1 category, meeting all specific eligibility criteria. The priority date from the EB-2 petition can typically be retained, which may expedite the process if the priority date is favorable.

Navigating the U.S. immigration system can feel like traversing a labyrinth, especially when it comes to employment-based visas. Among the most sought-after categories for skilled professionals are the EB1 and EB2 visas, each offering unique advantages and eligibility criteria. But what if you could bolster your chances of obtaining a green card by applying for both categories simultaneously? In this blog post, we will explore the possibility of filing for EB1 and EB2 at the same time. We’ll delve into the benefits of this dual approach, such as increased chances of approval and the creation of a safety net in case of denial. However, it's not all smooth sailing; we'll also address the potential complexities, costs, and legal considerations involved in simultaneous filing. Along the way, we’ll share real-life case studies that highlight both the successes and challenges faced by those who have taken this route. Whether you're a foreign national seeking to secure your future in the U.S. or an employer looking to sponsor talent, this comprehensive guide will provide you with the insights you need to make an informed decision about your immigration strategy.

Understanding EB1 and EB2 Visa Categories

The EB1 and EB2 visa categories are two of the most prestigious pathways for foreign nationals seeking permanent residency in the United States through employment. Understanding the nuances of each category is essential for anyone considering applying for these visas, especially if contemplating simultaneous filing.

Overview of EB1 Visa

The EB1 visa category is designed for individuals who demonstrate extraordinary ability in their fields, whether in the arts, sciences, business, or athletics. It is also available for outstanding professors and researchers, as well as multinational executives and managers. The EB1 category is subdivided into three main classifications:

EB1-A (Extraordinary Ability):
Designed for individuals who can demonstrate extraordinary ability in their field through sustained national or international acclaim.
No job offer is required, and applicants can self-petition.
Examples: Renowned scientists, artists, or athletes with significant accomplishments and recognition.
EB1-B (Outstanding Professors and Researchers):
Targeted at professors and researchers who are recognized internationally for their contributions in a specific academic field.
Requires a job offer from a U.S. employer and evidence of at least three years of experience in teaching or research.
Examples: A university professor with extensive publications and citations in top-tier journals.
EB1-C (Multinational Managers and Executives):
For managers and executives who have been employed outside the U.S. for at least one year by a qualifying multinational company and are being transferred to a U.S. office.
A job offer from the U.S. employer is required.
Examples: An executive from a global company like IBM relocating to lead the U.S. operations.

Overview of EB2 Visa

The EB2 visa category is aimed at professionals holding advanced degrees or those with exceptional ability in their fields. This category is particularly appealing to individuals with advanced education and skills that are in demand in the U.S. labor market. The EB2 category is also divided into two main classifications:

EB2-A (Advanced Degree Professionals):
Applicants must have a job offer and possess an advanced degree (master’s or higher) or a bachelor’s degree with five years of progressive work experience in the relevant field.
Examples: Engineers, scientists, or healthcare professionals with advanced degrees.
EB2-B (Exceptional Ability):
Designed for individuals who can demonstrate exceptional ability in the arts, sciences, or business, which significantly benefits the U.S. economy, cultural interests, or education.
Unlike EB2-A, this category may allow for a National Interest Waiver (NIW), which removes the requirement for a job offer if the applicant can prove that their work is in the national interest.
Examples: A researcher whose work addresses critical public health issues may qualify for an NIW.

Key Differences Between EB1 and EB2

Understanding the key differences between EB1 and EB2 is crucial for applicants considering their options:

Eligibility Criteria: EB1 requires proof of extraordinary ability or outstanding achievements, while EB2 focuses on advanced degrees or exceptional ability.
Job Offer Requirement: EB1-A allows for self-petitioning without a job offer, whereas EB2 generally requires one (unless applying under the NIW).
Processing Times: EB1 applications often experience shorter processing times compared to EB2, as they are usually prioritized in the immigration system.

Benefits of Filing EB1 and EB2 Simultaneously

Filing for the EB1 and EB2 visa categories simultaneously can offer several strategic advantages for applicants seeking permanent residency in the United States. While navigating the complexities of U.S. immigration law can be daunting, understanding the benefits of this dual approach can provide a clearer path toward achieving your immigration goals. Below are some of the key benefits associated with filing both EB1 and EB2 applications at the same time.

Increased Chances of Approval

One of the most compelling reasons to file for both EB1 and EB2 visas simultaneously is the increased likelihood of approval. The two categories have different eligibility criteria and standards for evaluation. By applying for both, you effectively create multiple avenues for success:

Diverse Evidence: Each application can showcase different strengths, qualifications, and achievements. For instance, while the EB1 application might highlight extraordinary achievements, the EB2 application could focus on advanced degrees and professional experience. This comprehensive presentation of qualifications can enhance your overall profile.
Targeting Different Criteria: The EB1 category is often more selective, requiring a higher standard of proof for extraordinary ability. However, if an applicant fails to meet EB1 criteria, the EB2 application may still be viable. By having both options available, you can ensure that one application might compensate for the shortcomings of the other.

Backup Plan in Case of Denial

Filing both EB1 and EB2 visas concurrently provides a safety net in the event of a denial. Immigration decisions can sometimes be unpredictable, and having an alternative pathway can be crucial:

Contingency Strategy: If the EB1 application is denied due to insufficient evidence of extraordinary ability, the EB2 application may still stand a chance, potentially leading to approval based on different criteria. This dual strategy minimizes the risk of being left without options.
Time Efficiency: If one application is denied, you can quickly pivot your focus toward the other application, reducing the time spent in limbo. This can be particularly beneficial for individuals on temporary work visas who are looking to transition to permanent residency.

Potential for Faster Processing Time

While processing times can vary based on individual circumstances and service center workload, filing both applications simultaneously may offer potential advantages:

Parallel Processing: By submitting both applications at the same time, you may benefit from parallel processing, allowing you to potentially receive decisions on both applications more quickly than if you were to file them sequentially.
Prioritization: In some cases, the EB1 category may be prioritized over the EB2 category. If the EB1 application is approved, the applicant may not need to wait for the EB2 processing to conclude, allowing for a faster path to permanent residency.

Flexibility in Employment Opportunities

Filing for both EB1 and EB2 visas simultaneously can also provide greater flexibility in employment options during the application process:

Job Offer Requirements: While EB1-A allows for self-petitioning, EB2 typically requires a job offer (unless applying under NIW). By pursuing both, applicants can explore opportunities that align with either visa category, giving them more leverage in the job market.
Networking and Opportunities: Engaging with multiple employers or professional networks while applying for both visas can lead to better job offers, which may strengthen both applications and provide opportunities that align with career goals.

Potential Challenges in Filing EB1 and EB2 Together

While filing for both EB1 and EB2 visas simultaneously can provide numerous benefits, it also comes with its own set of challenges. Understanding these potential hurdles is essential for applicants to effectively navigate the complexities of the U.S. immigration system. Below are some of the key challenges associated with filing both applications at the same time.

Increased Complexity in Application Process

Filing for two different visa categories simultaneously can lead to a more complex application process, which may require careful planning and attention to detail:

Different Documentation Requirements: Each visa category has its own set of documentation and evidence requirements. For instance, the EB1 application will necessitate documentation that demonstrates extraordinary ability, while the EB2 application may require evidence of advanced degrees or exceptional ability. Applicants must be meticulous in compiling and organizing documents for both applications, which can be time-consuming.
Navigating Legal Standards: The criteria for approval differ between the two categories. Applicants must ensure that they fully understand the legal standards and expectations for both EB1 and EB2 to present compelling cases. Misalignment in the presentation of evidence could lead to confusion or potential issues during the review process.
Consistent Messaging: When applying for two categories, it's vital to maintain consistency in the narrative presented in both applications. Inconsistencies could raise red flags for adjudicators and potentially harm the credibility of the applications.

Higher Costs

The financial implications of filing for both EB1 and EB2 visas simultaneously can be significant:

Filing Fees: Each visa application comes with its own filing fees, which can quickly add up. As of October 2023, the filing fee for Form I-140 (Immigrant Petition for Alien Worker) is $700 for both EB1 and EB2 applications. This means that applicants must budget for double the fees if they pursue both options.
Legal Fees: Many applicants choose to engage immigration attorneys to assist with their applications, especially given the complexities involved in filing for two different categories. Legal fees can vary widely, adding to the overall cost of the process.
Additional Expenses: Beyond filing and legal fees, applicants may incur additional costs related to obtaining required documents, such as academic evaluations, translations, or expert opinion letters. These expenses can add considerable financial strain.

Emotional and Psychological Burden

The immigration process can be emotionally taxing, and the challenges of filing for both EB1 and EB2 visas can amplify stress levels:

Uncertainty: The dual application process introduces uncertainty, as applicants may feel apprehensive about the outcomes of both applications. The fear of potential denial or delays can create anxiety.
Work-Life Balance: Managing the demands of preparing two applications while maintaining work and personal responsibilities can be overwhelming. Applicants must be proactive about time management and self-care to navigate this challenging process.

Legal Considerations for Filing EB1 and EB2 at the Same Time

Filing for both EB1 and EB2 visas simultaneously involves navigating a complex legal landscape. Understanding the legal considerations associated with this dual filing strategy is crucial for applicants to ensure compliance and maximize their chances of success. Below are several key legal aspects that individuals should keep in mind when considering simultaneous applications for EB1 and EB2 visas.

Understanding the Legal Framework

A solid grasp of the legal framework governing EB1 and EB2 visas is essential for applicants. This includes understanding the statutes, regulations, and policies that dictate eligibility and application processes:

Immigration and Nationality Act (INA): The EB1 and EB2 visa categories are governed by the Immigration and Nationality Act, which outlines the specific requirements and eligibility criteria for each visa type. Familiarity with the INA can help applicants understand what is required from them.
USCIS Guidelines: The U.S. Citizenship and Immigration Services (USCIS) provides detailed guidelines and policy memoranda related to EB1 and EB2 applications. These resources outline the acceptable evidence, application procedures, and adjudication standards that applicants should follow.
Priority Dates and Visa Bulletin: Understanding how priority dates work and how they affect visa availability is critical. The Visa Bulletin, published monthly by the U.S. Department of State, indicates the availability of immigrant visas in various categories. Applicants should be aware of their priority dates and how they may impact their applications.

Legal Implications and Concerns

Simultaneously filing for EB1 and EB2 visas can raise specific legal implications and concerns that applicants must consider:

Dual Intent Doctrine: The concept of dual intent allows foreign nationals on certain non-immigrant visas (like H-1B or L-1) to apply for permanent residency while maintaining their non-immigrant status. Applicants must ensure that their actions and intentions remain compliant with the rules surrounding dual intent, particularly when filing multiple applications.
Impact on Current Immigration Status: Applicants must be cautious about how filing for two immigrant visa categories may affect their current immigration status. For example, if an applicant is on a temporary work visa, they should ensure that they maintain their status while their applications are pending.
Potential for Denial: If one application is denied, it may have implications for the other application. For instance, a denial in the EB1 category due to a failure to meet the extraordinary ability criteria might raise questions about the applicant’s qualifications in the EB2 application. Applicants should be prepared for this possibility and consult with legal counsel to mitigate risks.

When to Seek Legal Advice

Given the complexities involved in filing for EB1 and EB2 visas at the same time, seeking legal advice is highly recommended:

Evaluating Eligibility: An immigration attorney can help assess the applicant's qualifications for both EB1 and EB2 categories, ensuring that they meet the necessary criteria and understand the respective documentation requirements.
Strategic Planning: Legal counsel can assist in developing a strategic approach to filing both applications, advising on how to present evidence effectively and addressing any potential issues that may arise.
Navigating RFEs and Appeals: If an applicant receives a Request for Evidence (RFE) or faces a denial, an attorney can guide them through the response process or assist with appeals, ensuring that the applicant's interests are properly represented.

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