For employers
Retaining Talent Without Sponsoring Anyone
Two employment-based green card categories are filed by the employee, not by you. No labor certification, no recruitment, no job offer, and no commitment on your balance sheet.
- 8 C.F.R. § 204.5(h)(5) — no job offer required for EB-1A
- 8 C.F.R. § 204.5(h)(3) — EB-1A criteria
- INA § 203(b)(2)(B); Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) — NIW framework
- Confirm nothing on this page describes the employer as a petitioner or the arrangement as sponsorship
Your employee petitions. You do not.
This page describes something that is not sponsorship, and the distinction is not cosmetic. In EB-1A and in the EB-2 national interest waiver, the individual is the petitioner. There is no employer petition, no job offer requirement, and no labor certification.
That means the categories carry none of the obligations employers associate with green card support: no recruitment cycle, no prevailing wage determination, no ability-to-pay showing, no public access file, and no commitment to employ the person permanently in a defined role.
Authority: 8 C.F.R. § 204.5(h)(5) — the job-offer exemption. Verify against the current text before relying on it.
What that saves you
- No PERM recruitment cycle and no audit exposure from one
- No prevailing wage determination gating the timeline
- No ability-to-pay documentation obligation
- No commitment that the role continues on defined terms
- No dependence on your filing calendar — the employee controls the case
Who plausibly qualifies
Fewer people than are hopeful, and more than most employers assume. The profiles worth a second look:
- Researchers and engineers with publication records, citations in context, and evidence of independent influence on the field
- People who have served as peer reviewers, journal referees, grant reviewers, or competition judges
- Named inventors on patents that others have adopted or licensed
- People whose work has been covered by trade or general press
- People whose work maps cleanly onto an articulated national priority — which is the national interest waiver question rather than the EB-1A one
Your actual role
Small, and worth doing well. An employer typically contributes a letter describing the significance of the employee's work and its relationship to the organization's objectives, access to internal records that document impact, and, occasionally, time.
What an employer should not do is treat the case as its own. The employee retains counsel or you do — but the petitioner is the individual, the file belongs to them, and the case travels with them if they leave. That last fact is the honest trade and should be said out loud before anyone starts.
How to raise it
Carefully. An employee hearing "you should file for yourself" can reasonably hear "we will not sponsor you." The framing that works is additive: the company will support a petition either way, and there is a route that does not depend on the company's timeline and does not tie the employee's status to a single role.
When it will not work
- Strong-but-conventional records — a good scientist is not, without more, an extraordinary-ability petitioner
- Early-career profiles where the evidence exists but has not yet accumulated; often an eighteen-month problem rather than a permanent one
- Fields where the employee's contributions are genuinely real but commercially confidential and cannot be documented
- Cases where the employee needs status certainty on a fixed date — a self-petition offers no such guarantee
If you've received a Request for Evidence
Because these are individual petitions, the RFE arrives to your employee, not to you. Employers are frequently asked to help answer one, and the help that matters is documentary.
What these requests typically ask for
- Independent evidence that the claimed contributions influenced the field beyond the employer
- Context for citation and publication metrics rather than raw counts
- Corroboration of the significance described in an employer support letter
- For NIW, evidence connecting the proposed work to a national-level interest rather than an employer-level one
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
Related
EB-1B outstanding professor or researcher
Outstanding professors and researchers. No labor certification required.
Read more →PERM labor certification
Prevailing wage strategy, recruitment design and documentation, ETA-9089 preparation, audit and supervised recruitment response.
Read more →For universities and research institutions
Cap-exempt hiring, international faculty and postdoctoral recruitment, and permanent residence paths that don't require a labor market test.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts