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

The Second Preference immigration category accounts for 28.6{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of the worldwide employment-based visa total. It is intended to promote the ability of employers to hire non-U.S. 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, referred to as a National Interest Waivers (NIW). This has proved to be a vague but not impossible hurdle to overcome.

Definitions

"Advanced degree professionals" are individuals who hold advanced degrees (beyond bachelor’s) or who have a bachelor’s 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."

Labor Certification Requirement, and Exceptions

An individual Labor Certification is required for some, but not all EB-2 petitions. Specifically, it is not required for:

  • National Interest Waivers
    • Aliens of exceptional ability in the sciences, arts, or business where exemption from the labor certification requirement is in the “national interest”

or

  • Schedule A listed occupations
    • Occupations for which the department of labor has determined, categorically, that there “are not sufficient United States workers who are able, willing, qualified, and available” and that the employment of aliens in these professions will not adversely affect the wages and working conditions of United States workers similarly employed.

As of November 2016, the occupations listed under Schedule A are limited to:

  • Physical therapists;
  • Professional nurses;
  • Occupations employing individuals of exceptional ability in a field of knowledge or skill for which colleges and universities commonly offer specialized courses leading to a degree; and
  • Occupations employing individuals of exceptional ability in the performing arts.

Process

Where an employer petitions for admission of a second preference immigrant who is an advanced degree professional, the process starts with the filing of a Labor Certification application with the U.S. Department of Labor, unless the individual will be employed as a physical therapist or professional nurse, which are professions exempt from Labor Certification under schedule A. Upon certification by the Department of Labor (DOL), the employer files Form I-140 immigrant petition for employment-based immigration status and other necessary documents.

Where an employer is seeking to obtain EB-2 classification for a person of exceptional ability in the arts or sciences, a labor certification is not required under schedule A, although a job offer is. Such employers file a Form I-140 immigrant petition along with a DOL form describing the worker’s qualifications and background, as well as other documentation supporting the request.

An individual seeking a National Interest Waiver may either self-petition or be the beneficiary of an employer filed petition. A job offer and Labor Certification is not required. The NIW petition requires filing a Form I-140 immigrant petition along with a DOL form describing the worker’s qualifications and background, as well as other documentation supporting the waiver request.

In all cases, if the individual is physically in the U.S., she may be eligible for adjustment of status processing. If not, consular processing and an immigrant visa interview abroad will be necessary.

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 U.S. college or university or an equivalent foreign degree with a credentials evaluation to substantiate the equivalence; or
  • An official academic record showing that the individual has a bachelor’s degree from a U.S. college or university or has an equivalent foreign degree, as well as letters from current and/or former employers showing that the individual has at least five years of progressive post-baccalaureate experience in the field.

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;
  • Evidence of recognition for achievements and significant contributions to the field by peers, governmental entities, or professional or business organizations;and
  • Other evidence to establish the individual's eligibility to the extent necessary.

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) Whether the person seeks employment in an area of substantial intrinsic merit. For example, the Administrative Appeals Office (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) Whether the proposed benefit is national in scope. For example, the benefits of a highway engineer working on the interstate highway system has been deemed national in scope, while an attorney seeking to enhance a U.S. city's trade with China was not.

(3) Whether 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, and non-medical researchers in telecommunications, chemistry, and atmospherics.

Dependents

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