EB-2 Preference

Individuals who qualify for EB-2 status are given second preference in granting permanent residency to the United States. Individuals can qualify for EB-2 status if they fit into any of the following categories: advanced degree, exceptional ability, or qualification for a national interest waiver.

Advanced Degree

To qualify for EB-2 status based on an advanced degree, an individual must provide proof that the job he or she wishes to move to the United States to perform requires an advanced degree, and that the individual possesses the required advanced degree or that he or she possess progressive experience in the profession that amounts to an equivalent of the advanced degree. The individual must have at the time of filing the petition a permanent, full time job offer in the United States that requires the relevant advanced degree in order to qualify for this status.

If the individual seeks to qualify on the basis of possession of the required advanced degree, he or she must provide documentation, such as an official transcript from a university or higher education institution, proving that they possess either the required United States advanced degree or its foreign equivalent. In determining whether a foreign degree qualifies as an “advanced degree” for EB-2 purposes, the agency will look to the Electronic Database for Global Education. A foreign degree is judged by factors such as the amount of schooling required to obtain the degree and whether the foreign state had any licensure requirements that the individual had to meet before he or she could work in the profession.

If the individual is seeking qualification based on progressive experience considered to be equivalent to the advanced degree, the individual must prove that he or she possesses a United States baccalaureate degree or its foreign equivalent, as well as at least five years of progressive post-baccalaureate work experience in the profession. Moreover, work experience with the individual’s current employer does not count toward the five-year experience requirement unless that work was performed in a different position than the position for which entry to the United States is sought. The United States position must included different or additional job duties in order for the prior experience to count toward the five-year requirement.

A petition for EB-2 advanced degree status must be filed by the employer, along with a statement by the employer verifying that the position in fact requires an advanced degree or a baccalaureate with at least five years of progressive post-graduate experience. The agency may also require the employer to prove that the job does in fact require the stated experience.

Exceptional Ability

To qualify for EB-2 status based on exceptional ability, an individual must show that he or she possesses exceptional skills in the sciences, arts, or business, and that, because of those abilities, he or she is likely to substantially benefit the United States’ economic, cultural, or educational interests.

To be considered an individual of exceptional ability, the applicant must provide at least three of the following pieces of evidence demonstrating his or her abilities: (i) an academic record indicating that they have a degree, diploma, or certificate from an institution of higher education relating to the area of exceptional ability; (ii) letters from employers verifying at least 10 years of full-time experience in their area of expertise; (iii) a required license or certification in their profession or occupation; (iv) evidence that they have demanded and been paid a salary or wage for services that demonstrates exceptional ability; (v) evidence of membership in one or more professional associations; (vi) evidence of recognition by peers, government entities, or business organizations for significant achievements or contributions made by the individual to the relevant field or profession; or (vii) any other comparable evidence showing exceptional ability.

To satisfy the requirement of showing a prospective benefit to the United States, the individual should provide any documentation showing a record of their achievements in foreign states and a description or explanation of how they intend to continue these achievements and contributions to their field in the United States. Some documents that may help to satisfy this requirement include evidence of past awards or special recognition for accomplishments, reports and academic papers that have been published about the individual’s work, or letters of recommendation from previous employers, colleagues, or experts in the individual’s field with whom they have worked.

Because EB-2 status for exceptional ability does not require an offer of employment in the United States, an individual may petition for this status on his or her own behalf.

National Interest Waiver

A national interest waiver is sought by individuals who wish to be admitted to the United States under EB-2 status without having to obtain a labor certification from the Department of Labor. Generally, an employer or individual seeking employment-based permanent residency will obtain a labor certification before petitioning the United States Citizenship and Immigration Services for a visa, and both are required in order to obtain permanent residency. If an individual applies for EB-2 status under a national interest waiver, he or she is asking the agency to waive the requirement for a labor certification.

The criteria for a national interest waiver are very similar to the criteria to show exceptional ability. The individual applying for this waiver must provide proof of at least three of the pieces of evidence required to show exceptional ability. See supra, “Exceptional Ability.” In addition, the individual must show that it is in the United States’ national interest to waive the labor certification requirement.

There is no statutory definition of the term “national interest,” but generally to show that waiver is in the United States’ national interest an individual must satisfy three requirements: (i) showing that the individual plans to work in an area of substantial intrinsic merit; (ii) showing that the individual’s work will have a national impact; and (iii) showing that the benefits the individual’s work would provide to the national interest outweigh the interest in requiring the labor certification.

To determine whether the first requirement is satisfied, the agency will consider factors such as whether the individual’s proposed work will improve the United States economy, positively impact wages and working conditions in the United States, help to improve educational and training programs for individuals in the United States, contribute to health care advances and accessibility, help to provide affordable housing for young people or senior citizens in the United States, contribute to productive use of natural resources and improving the environment, or strive to fulfill a request by a government agency in the United States. In applying for a national interest waiver, the individual should include letters from interested parties describing the work to be performed and its importance, any articles or other media coverage that discusses the work to be performed, or any other documents that describe the proposed work and the importance of its potential impact.

To satisfy the second requirement, an individual must show that the work he or she plans to perform is beneficial not only to his or her company or the local community in which the individual will be working, but to the nation as a whole, or that it contributes to some national goal. Generally, this requirement can be met if the individual can show that the work will be beneficial in an area of substantial intrinsic merit, i.e., satisfy the first national interest requirement, with regards to at least some parts of the United States, and that it will not be contrary to the interests of any other part of the United States. For example, an individual seeking admission to perform maintenance or construction of bridges and other means of transportation in just one major city may still be considered to have a national impact because it serves the national interest of having proper means of transportation to and from different regions. However, if an individual seeks to work in an area in which his or her impact would solely benefit the local community, such as a teacher seeking to teach at one local school or a general surgeon seeking to work at one local hospital, this would not be considered to have a national impact.

Finally, the individual must demonstrate to the agency that it is in the United States’ national interest to waive the requirement because the benefit of the individual’s proposed work outweighs the interests the labor certificate is designed to protect. In essence, what the individual must show is that the work he or she plans to perform will provide a specific, substantial benefit to the field and that the applicant has an ability to perform this work to a substantially greater degree of success than a United States worker. To meet this requirement, the individual should focus on the exceptionality of his or her skills, whether there is a lack or scarcity of other individuals who are as qualified as the applicant to perform this work, and the specific experiences that make this individual so exceptionally qualified that his skills are necessary to the performance of this work and to the project as a whole. This is a difficult requirement to satisfy, as the balancing test essentially requires the applicant to show that it would be detrimental to the United States’ interests to not grant the waiver.

An individual may self-petition for a national interest waiver, as it is not required that he or she have a job offer, but just that the applicant intends to embark on some project or area of work that will be beneficial to the United States.

Call us at (856) 222-0130