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Unemployed? Can YOU Still Get An EB1A Green Card?

Unemployed? Can YOU Still Get An EB1A Green Card?
Photo by Andrew Neel / Unsplash

Introduction to EB1A Green Card

EB1A green card is a prestigious immigration pathway designed for individuals who have demonstrated extraordinary ability in their field and achieved sustained national or international acclaim. This employment-based first preference visa (EB1) is reserved for those who have reached the very top of their profession—whether in the sciences, education, business, arts, or athletics—and can show a distinguished reputation through outstanding achievements.

One of the standout features of the EB1A green card is that it allows for self-petitioning, meaning you do not need employer sponsorship to apply. This is especially beneficial for entrepreneurs, researchers, artists, and other professionals whose careers may not fit the traditional employer-employee model. The EB1A green card also offers the option of premium processing for an additional fee, which can significantly reduce processing times and help applicants obtain permanent residency more quickly.

To establish eligibility for the EB1A green card, applicants must provide evidence of their extraordinary abilities and recognized expertise. This typically involves demonstrating a leading or critical role in their field, having published material in major trade publications or other major media, and receiving internationally recognized prizes or awards of major significance. Other ways to qualify include showing commercial successes in the performing arts, original scientific or business-related contributions, or a high salary or significantly high remuneration compared to peers.

EB-1A Green Card: Do You Need to Be Currently Employed to Qualify? My Insights as an Immigration Attorney

People have asked me whether you need to be currently employed in the field, or even at all, to pursue an EB-1A green card for individuals of extraordinary ability. If you are in a transitional phase of your career, it’s a topic we absolutely need to clarify.

The applicant does not need to be currently employed, but must demonstrate an intent to continue working or pursue continued work in their field of extraordinary ability in the U.S. The applicant qualifies for the EB1A green card by showing extraordinary ability and meeting the required criteria.

There is no legal requirement that you be currently employed to apply for an EB-1A green card. You don’t need to be working for an employer that’s sponsoring your EB-1A petition, nor do you even need an employer at all—you can, in fact, self-petition for the EB-1A.

However, while current employment is not required, you must demonstrate your intent to continue working or pursue continued work in your area of extraordinary ability in the U.S. This means that if you’re an individual of extraordinary ability, your ability to apply for this green card isn’t strictly tied to having a W-2 job or a traditional employment contract at the moment you file (or lined up as your future role).

Why Having a Job Can Be a "Huge Plus"

While not a legal requirement, having a job that actively demonstrates your engagement in your area of extraordinary ability is a significant advantage. Here’s why:

  • Evidence of Ongoing Activity: For your adjudicator at USCIS, it’s much easier for them to believe that you are a “big deal” in your field and actively “doing things” if you are, in fact, working in your field.
  • Demonstrates Value to the U.S. Economy: The EB-1A category is predicated on your extraordinary contributions. Being employed and actively contributing reinforces your value to the U.S. economy and workforce.

However, this doesn’t mean you can’t successfully pursue an EB-1A when you’re between jobs or in a non-traditional employment scenario. Even if you are out of work, providing evidence of your plans for continued work or your intent to continue working in your field—such as letters, contracts, or statements of planned activities—can help strengthen your petition.

Many successful EB-1A petitions come from individuals who aren’t in conventional 9-to-5 roles. Here’s how different situations can play out:

When presenting your case, it’s crucial to show a compelling narrative that highlights your extraordinary ability. Additionally, providing evidence of your plans for continued work or your intent to continue working in your field can strengthen your EB1A petition. This can include letters, contracts, or statements outlining your future activities in the U.S.

1. "Between Jobs" or On Leave

Some people find that being between jobs, or even on parental leave, provides them with the dedicated time and focus needed to gather their documentation and prepare a robust EB-1A petition. I’ve worked on many successful cases where individuals leveraged these down periods to fully immerse themselves in the green card process. Demonstrating plans for continued work or an intent to continue working in your field of extraordinary ability can further strengthen your application.

2. Seasonal Work, Contractors, and Performers

Not all extraordinary abilities fit neatly into a standard employment structure. Consider:

  • Performers Your work might be seasonal, contract-based, or involve multiple engagements rather than a single employer. You absolutely do not need a W-2 job to pursue an EB-1A. Your portfolio of work, contracts, performances, and recognition in your field will be your core evidence.
  • Freelancers, Consultants If your field lends itself to independent contracting or project-based work, your lack of a traditional employer is understandable and acceptable. Your extraordinary ability is demonstrated through your body of work, awards, publications, and impact, regardless of your employment status right now.

While being completely out of work, especially if your work authorization has lapsed, might not feel like a “position of strength” when asking the government for a green card based on your value to the economy, never say never. Your unique circumstances and the strength of your overall evidence may overcome this. The key is to present a compelling narrative that highlights your sustained extraordinary ability and future potential contribution. It is also important to show your plans for continued work or your intent to continue working in your field, as evidence of ongoing commitment is a key part of a successful EB1A petition.

EB-1A and Your Location: What if You're Outside the U.S.?

Another common question is whether you need to be physically present in the U.S. to file an EB-1A petition. The answer here is also no—you do not have to be in the U.S. to file your EB-1A.

However, if your goal is to live and work in the U.S. as quickly as possible while pursuing your green card, there's a strategic move many extraordinary individuals consider: apply for an O-1 visa first.

If you live outside the U.S. and want to begin working promptly, the O-1 visa (for individuals with extraordinary ability) offers a significant advantage over pursuing a green card from abroad:

  • Faster Work Authorization: An O-1 visa can be processed relatively quickly, allowing you to enter the U.S. and begin working in your field of extraordinary ability much sooner than waiting for an EB-1A immigrant visa.
  • Significant Overlap in Requirements: The evidence needed for an O-1 visa is remarkably similar to what's required for an EB-1A green card. By preparing for and obtaining an O-1, you're doing much of the groundwork for your EB-1A.
    • You'll be gathering and organizing your evidence.
    • You'll be crafting a compelling narrative about your achievements and why you deserve recognition as an alien of extraordinary ability.
  • O-1 Approval Bodes Well for EB-1A: If your O-1 visa is approved, it sends a very strong signal to USCIS about the merits of your extraordinary ability claim, which can significantly ease and expedite your subsequent EB-1A petition.

Ultimately, while current employment in your field can certainly strengthen your EB-1A petition by clearly demonstrating your ongoing contributions, it is not a legal requirement.

If you're an individual with extraordinary ability, whether you're currently employed or not, or if you are an employer looking to hire a foreign executive, I encourage you to explore the EB-1A green card. Your unique circumstances can be effectively presented to build a compelling case.

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Locke Immigration Law helps American businesses hire skilled foreign nationals to work in the United States.

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Want to learn how to strategically frame your achievements for the EB1A "Extraordinary Ability" visa?

My free 5-day email course, "5 Days to Your Compelling EB1A Story," provides the 'EB1A Storytelling Toolkit' to help you build a powerful case.

Sign up here: https://lockeimmigration.com/eb1a-email-course