Employment-Based Green Cards: EB-1A, EB-2 NIW, and EB-3 – Opportunities and Legal Strategies for Different Immigration Scenarios

The U.S. immigration system provides various employment-based visa options for foreign nationals seeking permanent residency through professional and employment categories. Understanding the differences between the EB-1A, EB-2 National Interest Waiver (NIW), and EB-3 visas is crucial for those who are in specific immigration situations, such as holding Temporary Protected Status (TPS), parole, removal proceedings, or pending asylum cases.

This article provides an in-depth legal analysis, citing USCIS Policy Manual, Federal Regulations, and case law, to explore the opportunities available for adjustment of status and immigrant visa processing abroad under these classifications.

1️⃣ EB-1A, EB-2 NIW, and EB-3: Understanding the Key Differences

✅ EB-1A: Alien of Extraordinary Ability

The EB-1A category is reserved for individuals who demonstrate extraordinary ability in science, arts, education, business, or athletics, with sustained national or international acclaim.

• Self-petition allowed (No employer sponsorship required).
• Labor certification not required.
• Requires extensive evidence of extraordinary ability (awards, media publications, significant contributions, etc.).
• High approval standard (must meet at least 3 of 10 criteria per 8 CFR § 204.5(h)(3)).

Legal Reference: 8 U.S.C. § 1153(b)(1)(A).

✅ EB-2 NIW: National Interest Waiver

The EB-2 NIW category applies to professionals with an advanced degree or individuals with exceptional ability in sciences, business, or arts, whose work is in the U.S. national interest.

• Self-petition allowed (Job offer waiver available).
• Labor certification not required if NIW is granted.
• Must prove (per Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)):
  1. The work has substantial merit and national importance.
  2. The applicant is well-positioned to advance the endeavor.
  3. It benefits the U.S. to waive the job offer requirement.

Legal Reference: 8 U.S.C. § 1153(b)(2).

✅ EB-3: Skilled Workers, Professionals, and Other Workers

The EB-3 visa is for:

• Professionals (Bachelor’s degree required).

• Skilled Workers (Requires at least 2 years of experience).

• Other Workers (Unskilled positions).

• Employer sponsorship and labor certification required.

• Usually longer wait times due to visa backlogs.

Legal Reference: 8 U.S.C. § 1153(b)(3).

2️⃣ Can You Adjust Status with TPS or Parole? Legal Analysis

✅ Adjustment of Status and TPS

📌 To qualify for adjustment of status (AOS) under INA § 245(a), an applicant must have been “inspected and admitted” or “inspected and paroled” into the U.S.

TPS Adjustment Challenges and Solutions

❌ Supreme Court Decision: Sanchez v. Mayorkas (2021)

The Supreme Court ruled that TPS alone does not count as an admission for AOS purposes if the individual entered unlawfully.

• TPS holders who initially entered unlawfully cannot adjust status inside the U.S. based solely on TPS.
• If the individual traveled on TPS Advance Parole (before July 1, 2022), they might be considered "inspected and admitted" upon re-entry and qualify for adjustment.

📌 Legal Reference: Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021).

✅ USCIS Policy Change on July 1, 2022

• TPS holders who travel with TPS Travel Authorization (Form I-512T) and return may now be considered "inspected and admitted" for adjustment purposes under INA § 245(a).

📌 Legal Reference: USCIS Policy Update on TPS & Adjustment​ .

✅ Adjustment of Status and Parole

📌 If an applicant was granted parole (humanitarian parole, parole-in-place, or other), they may qualify for adjustment of status if they meet other criteria.

• Parole is considered an “admission” under INA § 245(a).
• Parole recipients with an approved EB-1A, EB-2 NIW, or EB-3 petition may apply for AOS if otherwise eligible.

Legal Reference: 8 U.S.C. § 1182(d)(5).

3️⃣ Legal Strategies for Different Immigration Scenarios

➡️ TPS Holders

✔️ If admitted initially (e.g., on a visa) → Eligible for AOS under EB-1A, EB-2 NIW, or EB-3.
✔️ If entered unlawfully but traveled on TPS Travel Authorization (after July 1, 2022) → Eligible for AOS.
❌ If entered unlawfully and never traveled → Must process through consular processing.

➡️ Parolees

✔️ If lawfully paroled into the U.S. → Eligible for AOS under EB-1A, EB-2 NIW, or EB-3.
✔️ If granted advance parole (DACA, humanitarian, etc.) → May be eligible for AOS.

➡️ Individuals in Removal Proceedings

✔️ Request administrative closure to allow USCIS to process adjustment.
✔️ File a motion to reopen proceedings if eligible for an employment-based green card.
✔️ Request prosecutorial discretion to focus on employment-based case.

➡️ Affirmative Asylum Applicants

✔️ May apply for EB-1A, EB-2 NIW, or EB-3 while asylum is pending.
✔️ If I-140 (employment-based petition) is approved, they may adjust status if otherwise eligible.

📌 Matter of L-K- emphasized that an applicant must meet all admissibility requirements before adjusting status under employment-based classifications.

4️⃣ Conclusion: Structuring a Strong Immigration Strategy

The employment-based green card process varies significantly based on immigration history, status, and legal eligibility.

• TPS holders who traveled may adjust status under USCIS’s 2022 policy.
• Parolees generally qualify for AOS if otherwise admissible.
• Individuals in removal proceedings or asylum applicants must carefully strategize their applications.

📌 If you are considering an employment-based green card, it is crucial to consult with an immigration attorney to determine the best legal strategy for your case.

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