EB-1 visa USA: a green card with no employer and no PERM

What EB-1 is and where it sits among work green cards

EB-1 is the first preference of US employment-based immigration. Its main practical advantage over EB-2 and EB-3 is that no PERM is required: no labor certification in which an employer proves it could not find a US worker for the role. PERM alone takes one to two years and ties a person to one specific job with one specific employer. None of the three EB-1 subcategories go through it.

The second difference is the quota. EB-1 receives 28.6% of the annual employment-based limit plus numbers left unused by EB-4 and EB-5. For fiscal year 2026 the worldwide employment-based limit is 186,317 visas, which puts roughly 53,000 numbers in EB-1. A per-country cap applies on top: no more than 7% of the combined family and employment limits for any one country of birth, which is 28,862 in FY2026. That cap, not the category itself, is why people born in India and China wait while the rest of the world does not.

The mechanics are the same across all three subcategories. First comes the I-140 petition to USCIS. Once a visa number is available under the State Department visa bulletin, there are two routes: adjustment of status inside the US on Form I-485, or consular processing abroad on Form DS-260. An approved petition grants no status on its own - it locks in a priority date and confirms you fit the category.

Three subcategories: EB-1A, EB-1B and EB-1C

EB-1 is one label covering three different programs with three different burdens of proof. The evidence that carries a research scientist does nothing for a branch director.

EB-1A - extraordinary ability

Sciences, arts, education, business or athletics. You must show sustained national or international acclaim: either one major internationally recognized award at the level of a Nobel Prize, an Oscar or an Olympic medal, or at least three of ten criteria. You also have to show that you intend to keep working in the same field in the US. No employer is needed and the petition is filed by the applicant.

EB-1B - outstanding professors and researchers

Requires international recognition in an academic field, at least three years of teaching or research, and an offer of a permanent or tenure-track position at a US university or research organization. A private company can sponsor if it runs its own research unit with documented achievements and at least three full-time researchers. Six criteria exist and two must be met. Self-petition is not available - the organization files.

EB-1C - multinational managers and executives

Requires at least one year in a managerial or executive role abroad within the three years before filing, and a move into a comparable role at a related US entity: parent, subsidiary, branch or affiliate. The US company must have been doing business for at least a year. This is effectively the immigrant continuation of the L-1A visa, and the recurring fight with USCIS is a single question: does this person manage people and a function, or do the work themselves?

The ten EB-1A criteria and how many you need

The regulatory minimum is three criteria out of ten. That is the entry threshold, not an approval: once criteria are counted, the officer moves to a second stage of review described below. Strong petitions in practice clear four or five criteria with room to spare rather than three by a hair.

Where the criteria do not readily apply to an occupation - an entrepreneur or a coach has neither exhibitions nor journal articles - the rules allow comparable evidence. This is not a loophole: you must separately explain why the standard criteria do not fit the occupation and then produce evidence of equivalent significance.

Self-petition without an employer: how it works

Only EB-1A allows a self-petition. The rules put it in a single line: you may file Form I-140 on your own behalf. No sponsor, no job offer, no labor market test, no employer consent. Among US immigrant categories, only EB-2 NIW offers the same.

What that changes in practice

• The petition is yours. Changing jobs does not require refiling, and the priority date stays with you.
• You can file from abroad. Being in the US at the time of filing is not required, and neither is any US status.
• No dependence on a company. An employer cannot withdraw the petition, does not correspond with USCIS, and need not know it was filed.
• Founders file for themselves. Owning the business is not a conflict: the applicant is the petitioner.

What a self-petition does not remove

No employer does not mean no future work. You must show that you are entering the US to continue working in the same field in which extraordinary ability is claimed. Evidence includes letters of intent from US companies or universities, signed contracts, incorporation and operating documents of your own US entity, and a business plan naming projects and clients. Switching fields badly weakens the case: a physicist opening a restaurant does not qualify. A modest shift is accepted - a national-team athlete moving into coaching the same sport, for example.

Second, self-filing does not lower the evidentiary bar. With no employer reputation to lean on, the entire weight falls on the applicant's own documents. This is where most do-it-yourself petitions fail - not on the form, but on the evidence.

High salary as a criterion and how to prove it

The ninth EB-1A criterion covers a high salary or other significantly high remuneration in relation to others in the field. The operative words are the comparison. There is no dollar threshold and USCIS publishes none. A 300,000 dollar salary for an engineer in Silicon Valley may fail the criterion, while 60,000 dollars for a lecturer in a country where the average income is 8,000 may pass it.

Three questions the evidence must answer

1. What you earn. Tax returns, pay statements, employer letters, contracts; for a founder, dividends, distributions and company accounts. An offer letter alone is thin - USCIS wants a documented payment history, not a promise.
2. What comparable professionals earn. Data for the same occupation and geography: for the US, the OEWS program of the Bureau of Labor Statistics, industry compensation surveys and professional association data; for foreign income, national statistics from that country.
3. How far above you sit. Practice has settled around the upper percentiles, with pay above the 90th percentile for the occupation and region treated as convincing. The number is nowhere codified, but cases near the bottom of the range routinely draw a request for evidence.

Common mistakes

The first is converting a foreign salary into dollars and benchmarking it against US data. The USCIS position is the reverse: remuneration is assessed against the standards of the country where the work was performed. The second is submitting Department of Labor prevailing wage data alone, which describes the minimum lawful wage rather than the market ceiling and does not carry the criterion by itself. The third is merging salary, bonuses and equity into one figure without structure: if equity is included, the vesting schedule and a valuation as of the grant date are needed.

Final merits determination: why three criteria are not enough

Following the 2010 decision in Kazarian v. USCIS, the agency reviews EB-1A petitions in two steps. Step one is formal: does the submitted evidence match the regulatory description of each criterion, and do at least three criteria clear? Step two is the final merits determination, where the officer weighs the evidence as a whole and decides whether it shows sustained national or international acclaim and places the person among that small percentage who have risen to the very top of the field.

The consequence is simple: three counted criteria buy passage to step two and nothing more. A final merits denial reads roughly as follows - the criteria are satisfied, but the record as a whole does not establish the level of acclaim the classification requires. This is the single most common reason EB-1A petitions are refused.

What changed in 2026

On 28 January 2026 the federal district court for Nebraska held in Mukherji v. Miller that USCIS had adopted the two-step framework as a binding standard without notice-and-comment rulemaking, in violation of the Administrative Procedure Act. The denial was vacated and the case remanded with instructions to approve. USCIS appealed to the Eighth Circuit and then withdrew its own appeal on 10 June 2026, so no published appellate precedent was created. On 16 June 2026 the Administrative Appeals Office issued a decision rejecting the Mukherji argument outright.

Where that leaves an applicant in autumn 2026: inside USCIS the final merits determination remains the operating standard, and cases should be built for it. Mukherji is useful as an argument in litigating a denial, not as a reason to expect step two to disappear.

EB-1A compared with O-1 and EB-2 NIW

These three are compared constantly because their evidence overlaps. The differences are in status, threshold and consequences.

The working sequence for most people looks like this: start with the O-1 visa as the fast, lawful way to work in the US, spend two or three years building the profile from inside the country, then file EB-1A. Evidence transfers almost entirely - awards, publications, expert letters, judging records and citation data serve both petitions. A detailed breakdown of O-1 criteria and timelines sits in a separate article.

If the record genuinely falls short of the top of the field but the work matters nationally to the US, EB-2 NIW is the more realistic target. It also needs no employer and no PERM, the personal achievement bar is lower, but the queue is longer and premium processing runs 45 business days instead of 15.

Timelines, the queue and the cost

Standard I-140 adjudication in EB-1A is slow in 2026: official USCIS ranges sit between roughly 18 and 30 months for 80% of cases, before any request for evidence. That is why most applicants pay to upgrade.

One caveat on premium processing: what is guaranteed is a response, not an approval. Within the window USCIS must issue an approval, a denial, a notice of intent to deny or a request for evidence. A request resets the clock, which restarts once you respond.

The visa bulletin queue

Under the September 2026 bulletin, EB-1 is current for every country except two. For applicants born in China the final action date is 1 July 2023; for those born in India it is 15 October 2022. The State Department separately warned that EB-1 India may become temporarily unavailable before the fiscal year closes as annual numbers run out. Where a visa number is available, Form I-485 may be filed concurrently with the I-140, which saves several months.

Approval statistics: what the USCIS data shows

EB-1 is not one category in the statistics either. The spread between subcategories is enormous, and a headline EB-1 approval rate is misleading.

The headline is this: in late 2025, for the first time in the category's history, EB-1A denials outnumbered approvals. In the same quarter 7,756 new petitions were filed and roughly 25,000 sat pending. A rising volume of filings meeting a tightening standard is the actual environment cases are filed into today. EB-1B and EB-1C look nothing like it - almost everything is approved, but the entry requirement there is objective: an academic appointment, or a year of managerial work in a multinational group, rather than an assessment of eminence.

One more number to hold: practitioners put the share of EB-1A petitions drawing a request for evidence at 40-50%. A request is not a refusal and a large share of approvals arrive after the response, but timelines should be planned with that allowance.

What can go wrong, and who EB-1 does not suit

Common reasons for denial

• Criteria met on paper, not in substance. Judging evidenced by a single review invitation, authorship by two articles in unrelated journals. The criterion counts, but weighs nothing at final merits.
• Recommendation letters as the backbone of the case. Five letters from co-authors and former managers read to USCIS as the opinion of a friendly circle. What works are letters from independent experts who never worked with you and know you through results.
• Achievements with no proven impact. A patent with no adoption. Papers with no citations. A startup with no revenue.
• Questionable evidence. Predatory journals, purchased prizes, paid memberships, placed media coverage, inflated citation counts. USCIS screens for these deliberately.
• Acclaim that is not sustained. A burst of activity in the year before filing after ten empty years reads as case preparation.
• A weak link to future US work. No coherent plan, or a stated US field that differs from the one where the results were achieved.
• For EB-1C, management replaced by execution. A director with no subordinates and no managerial function is refused even when the company is genuine.

External risks in 2026

From 21 January 2026 the State Department suspended immigrant visa issuance to nationals of 75 countries, among them Russia, Belarus, Armenia, Azerbaijan, Kazakhstan, Uzbekistan, Kyrgyzstan, Moldova and Georgia. It covered every immigrant category and only consular issuance abroad, leaving adjustment of status inside the US untouched. On 21 August 2026 the federal court for the Southern District of New York vacated the suspension as contrary to law, and consulates returned to case-by-case adjudication. A separate USCIS hold on benefit requests from nationals of high-risk countries was struck down by a court in June 2026.

The lesson is not in the dates but in the planning horizon: one to several years pass between filing and a green card, and the rules move within that window. Applicants from Russia should note separately that the US embassy in Moscow issues no visas, the consulates in Yekaterinburg and Vladivostok are closed, and Russian immigrant visa cases are handled by the US embassy in Warsaw.

Who this category does not suit

EB-1A is not a mid-career route. If the achievements are solid but local - regional awards, papers without citations, a senior role at a company with no public standing - filing now most likely ends in a refusal and lost fees. Two or three years of profile building, or a look at EB-2 NIW where the project's importance is assessed rather than your rank in the field, is the better use of the time.

EB-1B is pointless without an offer of a US academic position. EB-1C does not fit small business owners whose US entity was set up specifically for the move: a year of genuine operations and a real management structure with subordinates are required. And generally, EB-1 sits badly with urgent deadlines - if the move has to happen this year, take O-1 or another work visa first and file the immigrant petition from inside the US.

Benefits of the EB-1 visa

How to get the EB-1 visa: step by step

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