For Indians facing 10-15 year backlogs, filing a weak EB-2 NIW early could lock in a priority date years ahead. But is risking denial worth it?
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For Indians and Chinese facing massive green card backlogs, filing an early EB-2 NIW (even with moderate evidence) can lock in a priority date that saves years of waiting. The strategy: file NIW now to establish priority date, continue building evidence, and either get NIW approved or file stronger EB-1A later while keeping the earlier date.
Risks include $6,000-$15,000 lost if denied, but potential reward is 3-5+ years saved. This strategy makes most sense for Indians with moderate evidence and 10+ year backlog.
Priority date is set when you file
Your place in the green card line is determined by filing date, not approval date.
Priority dates are portable
If NIW is denied but you later get EB-1A approved, you can sometimes port the earlier priority date.
For backlog countries, early filing has huge value
Locking in 2024 priority date vs 2027 priority date could mean 3 years faster green card.
Risk is $6,000-$15,000 if denied
Filing fees plus attorney costs lost if petition fails.
This strategy is for backlog countries only
If you're from non-backlog country, priority date doesn't matter - wait until evidence is strong.
Dual filing is optimal
File NIW now (weaker) while building toward EB-1A (stronger, no backlog).
Priority date is set when you file
Your place in the green card line is determined by filing date, not approval date.
Priority dates are portable
If NIW is denied but you later get EB-1A approved, you can sometimes port the earlier priority date.
For backlog countries, early filing has huge value
Locking in 2024 priority date vs 2027 priority date could mean 3 years faster green card.
Risk is $6,000-$15,000 if denied
Filing fees plus attorney costs lost if petition fails.
This strategy is for backlog countries only
If you're from non-backlog country, priority date doesn't matter - wait until evidence is strong.
Dual filing is optimal
File NIW now (weaker) while building toward EB-1A (stronger, no backlog).
What is priority date?
Your priority date is the date USCIS uses to determine your place in the green card queue. It's established when:
Your I-140 petition is filed (for EB-1A, NIW)
Your PERM is filed (for employer-sponsored EB-2/EB-3)
Why it matters for backlog countries:
Current EB-2 backlogs (approximate):
India: September 2012 (13+ years)
China: July 2020 (5+ years)
All others: Current (no backlog)
If you file today (November 2024):
Your priority date: November 2024
India: Won't be current for ~13+ years (2037+)
China: Won't be current for ~5 years (2029+)
If you file in 3 years (November 2027):
Your priority date: November 2027
India: Won't be current for ~13+ years (2040+)
Difference: 3 years of additional waiting
Scenario: Indian researcher, moderate evidence
Option A: Wait until evidence is perfect (3 years)
Year 0-3: Build evidence
Year 3: File EB-1A (strong case)
Year 5: EB-1A approved, green card (no backlog for EB-1A)
Total: 5 years
Option B: File weak NIW now, build evidence, file EB-1A later
Year 0: File EB-2 NIW (moderate evidence), priority date locked
Year 0-3: Continue building evidence
Year 3: File EB-1A
If EB-1A approved (likely if evidence built):
Year 5: Green card (EB-1A has no backlog)
Total: 5 years
NIW cost: Lost $6,000-$15,000
If EB-1A denied but NIW approved:
Year 2: NIW approved
Year 13+: Priority date becomes current
Total: 13+ years
Benefit: Priority date was Year 0, not Year 3
If both EB-1A and NIW denied:
Year 5: Refile EB-1A with even stronger evidence
Total: ~7 years if eventually approved
Loss: $6,000-$15,000 on failed NIW
Good candidates for early NIW filing:
1. Indians with 10+ year backlog ahead
Every year of priority date matters
Even small chance of NIW approval is worth it
Worst case: Lose filing costs, priority date from denial isn't useful
2. Evidence is moderate but growing
You meet 2 of 3 NIW prongs solidly
Third prong is weak but defensible
You're actively building evidence
3. You plan to pursue EB-1A anyway
NIW is backup, not primary strategy
If EB-1A approved, NIW doesn't matter (EB-1A has no backlog)
If EB-1A fails, NIW provides backup with early priority date
4. You can afford the risk
$6,000-$15,000 lost won't be devastating
It's an investment in priority date protection
Don't file weak case if:
1. You're from non-backlog country
Priority date doesn't matter if no backlog
Wait until evidence is strong, file once, get approved
2. Your evidence is very weak
High denial probability wastes money
Better to build evidence first
"Moderate" is different from "very weak"
3. You can't afford the loss
$6,000-$15,000 is significant for you
Focus on building evidence for stronger case
4. You're close to qualifying for EB-1A
If you'll qualify for EB-1A in 6 months, just wait
EB-1A has no backlog - priority date irrelevant
Best of both worlds:
Year 0:
File EB-2 NIW (moderate evidence)
Priority date: Year 0
Cost: $6,000-$15,000
Year 0-3:
Continue building evidence
Publications, press, awards, speaking
Goal: Qualify for EB-1A
Year 3:
File EB-1A (strong evidence)
Cost: $15,000-$25,000
Outcomes:
If EB-1A approved (Year 5):
Green card immediately (no backlog)
NIW becomes irrelevant
Total cost: $21,000-$40,000
Result: Green card in 5 years
If EB-1A denied, NIW approved (Year 2):
Wait for priority date (Year 0) to become current
India: ~13 years from Year 0
Result: Green card in ~13 years
Benefit: 3 years saved by early filing
If both denied:
Refile EB-1A with stronger evidence
Or continue employer-sponsored track
Loss: $21,000-$40,000
Can you keep priority date from denied petition?
General rule: Priority date is established when I-140 is filed. If I-140 is approved (even if you don't use it), priority date can be ported to future petitions.
If I-140 is denied: Priority date is lost. You cannot port priority date from denied petition.
Key insight: For this strategy to protect priority date, the I-140 must be approved (even if you later use different petition for green card).
Implication: Filing very weak case that will certainly be denied doesn't protect priority date. You need reasonable chance of approval.
Costs of early NIW filing:
Attorney fees: $5,000-$12,000
Filing fee: $700
Total: $5,700-$12,700
Benefits if NIW approved:
Priority date locked 3+ years earlier
For Indians: 3 years earlier green card
Value: Priceless (career flexibility, family planning)
Benefits if NIW denied but EB-1A later approved:
None (EB-1A has no backlog, priority date irrelevant)
Net calculation for Indians:
Outcome | Probability | Value |
NIW approved | 40% | Priority date 3 years earlier (~$100K+ in career value) |
NIW denied, EB-1A approved | 40% | No benefit (EB-1A no backlog) |
Both denied | 20% | Lost $6K-$15K |
Expected value: Positive for Indians with moderate evidence
Some attorneys advise against this:
"Don't file until you're ready"
"Denial goes on your record"
"Waste of money if denied"
Some attorneys support this:
"Priority date value is enormous for Indians"
"Moderate evidence has 40-60% approval chance"
"Even if denied, EB-1A backup covers you"
Key question to ask attorney: "Given my evidence, what's the estimated approval probability for NIW filed today?"
50%+: Probably worth filing
30-50%: Depends on your risk tolerance
<30%: Build more evidence first
Evidence Strength Assessment
OpenSphere evaluates your current NIW evidence and estimates approval probability.
Priority Date Value Calculator
Based on your country of birth, OpenSphere calculates value of earlier priority date.
Risk-Reward Analysis
OpenSphere shows: Expected value of filing now vs Expected value of waiting 2-3 years.
Dual Filing Roadmap
OpenSphere maps the dual strategy: File NIW now (priority date protection). Build evidence for EB-1A. File EB-1A when ready.
Factor | File Now (Weak Case) | Wait Until Strong |
Priority date | Locked today | Locked in 3 years |
Time savings (India) | 3 years | None |
Approval probability | 40-60% (moderate evidence) | 70-80% (strong evidence) |
Cost if denied | $6,000-$15,000 lost | $0 |
Best for | Indians with moderate evidence | Non-backlog countries, very weak evidence |
Wondering whether filing a moderate NIW case now could save you years of waiting? Want to know your approval probability?
Take the OpenSphere evaluation. You'll get priority date value analysis and filing recommendation.
Calculate Your Priority Date Strategy
What is priority date?
Your priority date is the date USCIS uses to determine your place in the green card queue. It's established when:
Your I-140 petition is filed (for EB-1A, NIW)
Your PERM is filed (for employer-sponsored EB-2/EB-3)
Why it matters for backlog countries:
Current EB-2 backlogs (approximate):
India: September 2012 (13+ years)
China: July 2020 (5+ years)
All others: Current (no backlog)
If you file today (November 2024):
Your priority date: November 2024
India: Won't be current for ~13+ years (2037+)
China: Won't be current for ~5 years (2029+)
If you file in 3 years (November 2027):
Your priority date: November 2027
India: Won't be current for ~13+ years (2040+)
Difference: 3 years of additional waiting
Scenario: Indian researcher, moderate evidence
Option A: Wait until evidence is perfect (3 years)
Year 0-3: Build evidence
Year 3: File EB-1A (strong case)
Year 5: EB-1A approved, green card (no backlog for EB-1A)
Total: 5 years
Option B: File weak NIW now, build evidence, file EB-1A later
Year 0: File EB-2 NIW (moderate evidence), priority date locked
Year 0-3: Continue building evidence
Year 3: File EB-1A
If EB-1A approved (likely if evidence built):
Year 5: Green card (EB-1A has no backlog)
Total: 5 years
NIW cost: Lost $6,000-$15,000
If EB-1A denied but NIW approved:
Year 2: NIW approved
Year 13+: Priority date becomes current
Total: 13+ years
Benefit: Priority date was Year 0, not Year 3
If both EB-1A and NIW denied:
Year 5: Refile EB-1A with even stronger evidence
Total: ~7 years if eventually approved
Loss: $6,000-$15,000 on failed NIW
Good candidates for early NIW filing:
1. Indians with 10+ year backlog ahead
Every year of priority date matters
Even small chance of NIW approval is worth it
Worst case: Lose filing costs, priority date from denial isn't useful
2. Evidence is moderate but growing
You meet 2 of 3 NIW prongs solidly
Third prong is weak but defensible
You're actively building evidence
3. You plan to pursue EB-1A anyway
NIW is backup, not primary strategy
If EB-1A approved, NIW doesn't matter (EB-1A has no backlog)
If EB-1A fails, NIW provides backup with early priority date
4. You can afford the risk
$6,000-$15,000 lost won't be devastating
It's an investment in priority date protection
Don't file weak case if:
1. You're from non-backlog country
Priority date doesn't matter if no backlog
Wait until evidence is strong, file once, get approved
2. Your evidence is very weak
High denial probability wastes money
Better to build evidence first
"Moderate" is different from "very weak"
3. You can't afford the loss
$6,000-$15,000 is significant for you
Focus on building evidence for stronger case
4. You're close to qualifying for EB-1A
If you'll qualify for EB-1A in 6 months, just wait
EB-1A has no backlog - priority date irrelevant
Best of both worlds:
Year 0:
File EB-2 NIW (moderate evidence)
Priority date: Year 0
Cost: $6,000-$15,000
Year 0-3:
Continue building evidence
Publications, press, awards, speaking
Goal: Qualify for EB-1A
Year 3:
File EB-1A (strong evidence)
Cost: $15,000-$25,000
Outcomes:
If EB-1A approved (Year 5):
Green card immediately (no backlog)
NIW becomes irrelevant
Total cost: $21,000-$40,000
Result: Green card in 5 years
If EB-1A denied, NIW approved (Year 2):
Wait for priority date (Year 0) to become current
India: ~13 years from Year 0
Result: Green card in ~13 years
Benefit: 3 years saved by early filing
If both denied:
Refile EB-1A with stronger evidence
Or continue employer-sponsored track
Loss: $21,000-$40,000
Can you keep priority date from denied petition?
General rule: Priority date is established when I-140 is filed. If I-140 is approved (even if you don't use it), priority date can be ported to future petitions.
If I-140 is denied: Priority date is lost. You cannot port priority date from denied petition.
Key insight: For this strategy to protect priority date, the I-140 must be approved (even if you later use different petition for green card).
Implication: Filing very weak case that will certainly be denied doesn't protect priority date. You need reasonable chance of approval.
Costs of early NIW filing:
Attorney fees: $5,000-$12,000
Filing fee: $700
Total: $5,700-$12,700
Benefits if NIW approved:
Priority date locked 3+ years earlier
For Indians: 3 years earlier green card
Value: Priceless (career flexibility, family planning)
Benefits if NIW denied but EB-1A later approved:
None (EB-1A has no backlog, priority date irrelevant)
Net calculation for Indians:
Outcome | Probability | Value |
NIW approved | 40% | Priority date 3 years earlier (~$100K+ in career value) |
NIW denied, EB-1A approved | 40% | No benefit (EB-1A no backlog) |
Both denied | 20% | Lost $6K-$15K |
Expected value: Positive for Indians with moderate evidence
Some attorneys advise against this:
"Don't file until you're ready"
"Denial goes on your record"
"Waste of money if denied"
Some attorneys support this:
"Priority date value is enormous for Indians"
"Moderate evidence has 40-60% approval chance"
"Even if denied, EB-1A backup covers you"
Key question to ask attorney: "Given my evidence, what's the estimated approval probability for NIW filed today?"
50%+: Probably worth filing
30-50%: Depends on your risk tolerance
<30%: Build more evidence first
Evidence Strength Assessment
OpenSphere evaluates your current NIW evidence and estimates approval probability.
Priority Date Value Calculator
Based on your country of birth, OpenSphere calculates value of earlier priority date.
Risk-Reward Analysis
OpenSphere shows: Expected value of filing now vs Expected value of waiting 2-3 years.
Dual Filing Roadmap
OpenSphere maps the dual strategy: File NIW now (priority date protection). Build evidence for EB-1A. File EB-1A when ready.
Factor | File Now (Weak Case) | Wait Until Strong |
Priority date | Locked today | Locked in 3 years |
Time savings (India) | 3 years | None |
Approval probability | 40-60% (moderate evidence) | 70-80% (strong evidence) |
Cost if denied | $6,000-$15,000 lost | $0 |
Best for | Indians with moderate evidence | Non-backlog countries, very weak evidence |
Wondering whether filing a moderate NIW case now could save you years of waiting? Want to know your approval probability?
Take the OpenSphere evaluation. You'll get priority date value analysis and filing recommendation.
Calculate Your Priority Date Strategy
1. Can I port priority date from denied petition?
No. Priority date is only portable from approved I-140s.
2. Does denial hurt future applications?
It's part of your record but doesn't automatically hurt future cases. Many successful applicants had prior denials.
3. Can I file NIW and EB-1A simultaneously?
Yes. Many people file both. Whichever is approved, you can proceed with that path.
4. What if my NIW is approved but I later qualify for EB-1A?
You can file EB-1A separately. If approved, use EB-1A (no backlog) instead of waiting for NIW priority date.
5. Is this strategy ethical?
Yes. You're filing a legitimate petition with the evidence you have. There's no fraud or misrepresentation.
6. What if my evidence is borderline?
Consult with attorney. If they estimate 40%+ approval, it may be worth filing.
7. Can employer-sponsored EB-2 priority date be ported to NIW?
Yes. If you have employer-sponsored I-140 approved, you can port that priority date to NIW.
8. Does this work for Chinese applicants?
Yes, but value is smaller (5-year backlog vs 13+ for Indians). Same calculation applies.
9. What if I'm already in employer-sponsored EB-2 process?
You can file NIW independently while employer process continues. Use earliest priority date.
10. Should I tell my employer about NIW filing?
Not required. NIW is self-petition. Employer doesn't need to know.
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