Can You File an EB-1A and an EB-2 NIW at the Same Time?

Yes. Nothing in the statute or regulations limits you to one pending Form I-140, and USCIS adjudicates each petition on its own record. Filing an EB-1A and an EB-2 NIW at the same time is a common strategy for researchers, physicians, engineers and founders whose records sit near the EB-1A line, and it is one of the sequencing options the firm’s EB-1, EB-2 NIW and O-1 overview page describes for a first consultation. This post explains what the dual filing achieves, what it costs, and when a single petition is the better choice.

Why file an EB-1A and an NIW at the same time

The two petitions hedge different risks. The EB-1A carries the higher standard, so it is the more likely of the two to be denied, but the first preference is usually more favorable under the Visa Bulletin. The NIW has a more attainable standard under Matter of Dhanasar, but the second preference can be backlogged for applicants born in high-demand countries. Filing both means that if the EB-1A is approved you proceed in the faster category, and if it is denied you still hold an approved NIW with its own priority date.

Each approval also stands independently. A denial of the EB-1A has no legal effect on the pending NIW, and officers decide each petition on the evidence in that file. In practice the two petitions are often decided by different officers at different times.

How priority dates work with two approved petitions

Your priority date is the date USCIS receives each I-140. If you file both on the same day, both carry the same date. Under 8 CFR 204.5(e), a priority date from an approved employment-based petition is retained for any later employment-based petition, unless the earlier approval is revoked for fraud, material misrepresentation, material error or similar reasons. So an approved NIW establishes a date you keep even if you later file and win an EB-1A.

When you reach the Form I-485 stage, you choose the category under which to adjust, and you may ask USCIS to transfer a pending I-485 from one approved I-140 to another if the second category becomes current first. Our post on priority dates versus filing dates explains how the two Visa Bulletin charts affect when the I-485 can be filed.

What changes in the evidence and the brief

The exhibits are largely the same: publications, citation reports, expert letters, awards, press, patents, roles and pay records. The argument differs, and that difference matters more than most petitioners expect.

• The EB-1A brief maps evidence to the ten regulatory criteria and then argues sustained acclaim and a position at the top of the field.
• The NIW brief describes a specific proposed endeavor, argues its substantial merit and national importance, and then uses your record to show you are well positioned to advance it. Our post on NIW evidence that works shows what that looks like.
• Recommendation letters should be written separately or at least adapted. A letter praising your standing in the field helps the EB-1A; a letter explaining why your planned work matters to the United States helps the NIW. A single generic letter serves neither well.

Both petitions require Form I-140, a separate filing fee for each, and separate supporting evidence sets. If you request premium processing, it is requested and paid for per petition.

When one petition is the better choice

Filing both is not automatic. Consider a single petition when:

• Your country of birth is current in both EB-1 and EB-2, so the Visa Bulletin advantage of EB-1 disappears and the NIW alone, with its lower standard, may be enough.
• The EB-1A case is clearly not ready. A weak EB-1A filed alongside a strong NIW adds cost without adding much protection, and a denial becomes part of an immigration history that later officers can see.
• You are already an employee of an institution filing an EB-1B. Pairing the employer’s EB-1B with your own NIW often makes more sense than three petitions. Our EB-1 first preference green card page compares the three EB-1 subcategories.

Consider both when the EB-1A is plausible but uncertain, EB-2 is backlogged for your country of birth, and you can carry the cost of two petitions. The hedging value is highest in exactly that situation.

Sequencing and concurrent I-485 filing

If EB-1 is current for your country of birth and you are in the United States in lawful status, the EB-1A can be filed concurrently with Form I-485, Form I-765 and Form I-131. The NIW cannot carry a concurrent I-485 if EB-2 is not current, so the NIW is filed alone and sits as a backup. If the EB-1A is later denied and the I-485 was based on it, the I-485 is generally denied too unless an approved NIW with a current date is available and you ask USCIS to transfer the adjustment application to it. That is one more reason to file the NIW at the same time rather than after a denial.

For a side-by-side look at the two standards, see our EB-1A vs EB-2 NIW comparison and the EB-2 National Interest Waiver page.

If you are weighing a dual EB-1A and NIW filing, Capitol Law Partners can review your record and advise whether two petitions are worth the cost in your case. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our extraordinary ability visa overview page or schedule a consultation.