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Advanced Degree Professionals and Persons of Exceptional Ability (EB-2)

 

 

The Second Preference immigration category accounts for 28.6% of the worldwide employment-based visa total. It is intended to promote the ability of employers to hire non-US advanced degree professionals and persons of exceptional ability. It also permits those individuals to self-petition for permanent residence without a pending offer of employment upon a showing that their presence and activities would benefit the national interest and economy. This has proved to be a high but not impossible hurdle to overcome.

 

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Application

 

"Advanced degree professionals" are individuals who hold advanced degrees (beyond bachelors) or who have a bachelors degree plus five years or more of experience in their field. "Exceptional ability individuals" are defined as persons "in the sciences, arts, or business who will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States."

 

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Process

 

Where an employer petitions for admission of a second preference immigrant, the process starts with the filing of a labor certification application with a state employment service. Upon grant by the Department of Labor, the employer may file a Form I-140 petition for employment-based immigration status and other necessary documents. A self-petitioner seeking a national interest waiver must also submit Form ETA-750B, describing the individual's qualifications and background, as well as documentation supporting the waiver. If the individual is physically in the US, he may be eligible for adjustment of status processing. If not, or if not already admitted to the US under a different status, consular processing will be necessary.

 

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Proofs for Advanced Degree Professionals

 

The required documentation includes:
  • An official academic record showing that the individual has an advanced degree (masters or higher) from a US college or university or a foreign equivalent degree, with a credentials evaluation if necessary, to substantiate the equivalence; or
  • An official academic record showing that the individual has a bachelors degree from a US college or university or has a foreign equivalent degree, as well as letters from current or former employers showing that the individual has at least five years of progressive post-baccalaureate experience in the field.

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Proofs for Exceptional Ability Persons

 

Individuals demonstrating proof of exceptional ability in the sciences, arts, or business, must provide evidence of three or more of the following:
  • An official academic record showing that the individual has a university degree relating to the area of exceptional ability;
  • Letters from employers showing that the individual has at least ten years of full- time experience in the occupation for which he or she is being sought;
  • A license to practice or certification for the profession or occupation;
  • Evidence that the individual has commanded high compensation;
  • Evidence of membership in professional associations; or
  • Evidence of recognition for achievements and significant contributions to the field by peers, governmental entities, or professional or business organizations;
  • Other evidence to establish the individual's eligibility to the extent necessary.

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Elements of National Interest Waivers (NIW)

 

In a precedent setting 1998 decision, the Administrative Appeals Office of the then-INS established a three part test it would apply in considering the validity of an NIW .

 

(1) The person seeks employment in an area of substantial intrinsic merit. For example, the AAO has found that coaching the sport of sculling has substantial intrinsic merit because sculling is not an obscure or arcane sport with a limited following. Inasmuch as this is not an intuitively obvious conclusion, the intrinsic merit test can clearly be a subjective one;

 

(2) The proposed benefit must be national in scope. For example, a highway engineer working on the interstate highway system, yes; an attorney seeking to enhance a US city's trade with China, no; and

 

(3) the national interest would be adversely affected if a labor certification were required. Because the labor certification process is intended to protect job opportunities for U.S. workers, grant of a waiver requires demonstration "that the national benefit is so great as to outweigh the national interest inherent in the labor certification process." Cases which have met the burden include a business person employing 210 to 270 employees; Medical researchers studying AIDS, Multiple Sclerosis, and genetic diseases; Non-medical researchers in telecommunications, chemical, and atmospherics.

 

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Dependents

 

Spouse and minor children may accompany the principal and receive permanent resident status.

 

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I-140 Immigrant Petition for Alien Worker
ETA-9089 Appl. for Permanent Employment Certification
I-485 Application to Register Permanent Residence or Adjust Status

 

 

 

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