What is an EB-1A and why does it matter?

What is an EB-1A and why does it matter?

An EB-1A is one of 3 subparts (alongside EB-1B, “Outstanding Researchers” and EB-1C “Multinational Managers”) of one of 5 ways (EB-1 through EB-5) that the US grants employment-based green cards (or permanent residency). Most people go through the EB-2 or EB-3 routes, which are standard for those employed and have an undergraduate / masters degree. Because the US has a fixed country caps by country of birth for green cards, this route is backlogged for highly over-represented countries, like Indians and can take over 150+ years.

As far as my knowledge goes, this leaves only 5 realistic paths for most Indians —

• Get married to a US citizen (or even an Indian citizen born in a country that is not India)
• EB-1A (Extraordinary Ability) — this category is not as far backlogged as EB-2/3.
• EB-1C (Multinational Executive) — ask your company to move you company outside the US for a year as a manager and come back to the US to manage a team.
• EB-5 (Investor Visa) — needs $900k or $1.8M in an investment. This category is not as far backlogged as EB-2/3.
• EB-1B (Outstanding Researcher) — go to a Masters or PhD, or become a professor, and have cited published research

What makes immigration to the US particularly difficult for Indians?

Most people in the immigration system are familiar with this, and can skip this section.

There are two common routes of immigration to the US for Indians — education and work. I’ll try to break these down as simply as possible without going too far into the weeds.

Education

• In the education route, one comes to the US for their undergraduate, masters (most common), PhD or an MBA. Law and Medicine are somewhat uncommon for Indians who are born in India. You apply, get in and come to America first on an F-1 student visa.
• After you graduate, you use your OPT (Optional Practical Training) to work in the US for up to a year later. Most people make sure they major in a STEM degree so they can extend their OPT to 3 years.
• In every one of those three years, ideally your firm sponsors your application for an H-1B to allow you to work legally in America for 3 more years (extensible up to 6). Unfortunately, the H-1B is a lottery program that’s also available to those who do not even work in the US yet and the odds of getting an H-1B in recent years are as low as 10%! It used to be closer to 50-70% before. You can apply for the lottery once a year, so a 3 year OPT means you get 3 tries. If you don’t get an H-1B in 3 tries, you can try “Day 1 CPT” or hope your company moves you to an office abroad, maybe London or Canada or India, which are popular visa “parking” destinations for employers. If you switch jobs, you have to reapply for an H-1B for your new job, but it won’t be considered a lottery. These days, on account of the low H-1B acceptance rate, more and more people are trying to apply for an O-1 (Extraordinary Ability) visa instead.
• Once you get an H-1B, typically your company will get you to apply for your employment-based green card, or EB visas. If you’re minimally an undergrad, you apply for EB-3. If you’re minimally a masters student, you apply for EB-2. EB-2 and 3 are straightforward. The green card process is laborious and can take minimally 1 year. When you get a green card, you’re a permanent resident of the US and can be eligible for naturalization after 5 years. But…
• The US has a cap on how many people can be granted different kinds of green cards, including EB cards (by category), each year. The number of people is capped by country of birth. As a result, countries with the most green card demand, India and China, get backlogged. The US State Government publishes a status of how backlogged the green card categories are by country of birth every month in the visa bulletin. If you’re Indian, the standard categories of EB-2 and EB-3 are backlogged so far back that the USCIS is processing applications from 2012! According to calculations, it will take 100+ years for Indians applying today in these categories to actually get a green card.
• However, simply being approved for a category means that you can now renew your H-1B indefinitely for increments of 3 years. This is the classic “indentured servant” or golden handcuffs situation. Moving jobs is annoying and difficult (you have to refile an H-1B and refile your EB-2 / 3 application), you cannot be unemployed or you will have 2 months to leave the country, and every time your H-1B is about to expire, you have to travel to your home country to get it stamped before coming back to the US. This is another reason immigrants prefer to work at large companies — they can be relocated and are likely to be sponsored for an H-1B. This can absolutely displace families, such as when big layoffs happen.
• If you’re a PhD, you can be a candidate for both EB-1A (Extraordinary Ability) and EB-1B (Outstanding Researcher), but the second is easier to prove.
• This leaves about 5 paths, as listed above.

Work

• In the work route, one is working at a multinational company abroad and wants to move to the US office. They have two options — H-1B, as covered above, which is subject to an annoying lottery, or an L-1, which is an intra-company transfer which has no annual cap. The downside of an L-1 is that you can’t change companies you work with and are locked in.
• After you’re transferred to the US, typically L-1 employees try to apply for an EB-1C which does not have a long backlog for Indians. Some people find this route controversial since it is abused by Indian IT workers (Infosys, TCS, etc) who are far from “multinational executives” but in some way get to the front of the line above “more qualified” tech workers (FAANG employees).

For an Indian looking to move to the US today, the absolute quickest they can get a green card via the education route is Masters (1 year) + STEM OPT (1 year) + H-1B (2 years) + EB-2 (get a priority date) + EB-1 prep on H-1B (1-2yrs) + Priority date for EB-1 current (could be up to 2-5+yrs) = 8-13 years if the EB-1 becomes current in 2yrs. Most Indian will never get a green card in their lifetime because of the 100+ year long wait. Canada and the UK have recently become far more attractive emigration destinations as a result.

What does a green card allow you to do that another visa (H-1B, L-1) does not?

Here’s a non-exhaustive list of things that a green card does you to do that other visas (H-1B, L-1, F-1) does not:

• Employment-related
  • Start a business
  • Be unemployed for more than 2 months
  • Switch employers without paperwork
  • Be employed by a company that does not have to pay ~$10k to sponsor your H-1B
  • Access to certain jobs and awards that require US permanent residency
  • Make side-income from other jobs
• Travel-related
  • Travel freely without worrying about H-1B stampings or being allowed back in to the US
  • Be in a different, shorter line at airports when you fly into the US
  • Go to Canada without a visa
• Other
  • Study anything without a status change
  • Be able to freely sponsor family members

I would recommend most Indians, especially those who have a future interest in entrepreneurship (although there are other avenues outside this), start preparation for an EB-1A as soon as they start working their first full time job. I would apply for an EB-2 as soon as your company lets you so you can secure an early priority date (if your EB-1A will take longer), and port your date over after. Two years of prep work for an EB-1A should be more than sufficient.

If not an EB-1A, it’s a good idea to explore one of the other viable routes if you want to remain in the US long term.