EB-2

EMPLOYMENT-BASED IMMIGRATION: SECOND PREFERENCE (EB-2)

WHO CAN APPLY?

The EB-2 visa category is reserved for aliens that are members of a profession holding an advanced degree (or its equivalent) or who have exceptional ability. Generally, EB-2 visa petitions are accompanied by an approved individual labor certification from the Department of Labor (also known as PERM), but aliens can request that the labor certification be waived through the National Interest Waiver. (NOTE: If filing through a labor certification, the alien must have a sponsoring employer who files the Form I-140, Petition for Alien Worker. If filing through the National Interest Waiver, the alien may petition individually without a sponsoring employer and personally file the Form I-140, Petition for Alien Worker).

Advanced Degree Professional

REQUIREMENTS:

The applicant’s proposed job in the United States must require an advanced degree (a degree above the baccalaureate level, i.e. M.A., M.S., M.D., Ph.D.). The applicant must be able to demonstrate that he/she possesses the advanced degree or its equivalent. (NOTE: the “equivalent” of an advanced degree is a baccalaureate degree plus 5 years of work experience in the field).

DOCUMENTATION:

To demonstrate that the applicant has an advanced degree or its equivalent, the applicant must submit an official academic record (i.e. diplomas, transcripts) and/or letters showing that the applicant has at least 5 years of post-baccalaureate work experience in the field.

Exceptional Ability

REQUIREMENTS:

For applicants not possessing an advanced degree or its equivalent, the applicant may be eligible for the EB-2 visa based on his/her exceptional ability in the sciences, arts, or business. This means that the applicant demonstrates a degree of expertise superior to others in the same field. The applicant must meet at least three (3) of the following criteria:

Official academic record showing that the applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability;
Letters documenting at least 10 years of full-time experience in the field;
A license to practice the profession or certification for the profession or occupation;
Evidence that the applicant has commanded a salary or other remuneration for services that demonstrates the applicant’s exceptional ability;
Membership in a professional association(s);
Recognition for the applicant’s achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations;
Other comparable evidence of eligibility is also acceptable.

DOCUMENTATION:

The applicant must provide physical documentation supporting at least three (3) of the above criteria to demonstrate extraordinary ability. This documentation can include, but is not limited to, letters of recommendation from experts in the applicant’s field of research, photographs of awards, certificates of awards or membership in professional organizations, copies of the applicant’s research papers, copies of the applicant’s patents or patent applications, the applicant’s citation record from websites such as Google Scholar, copies of news articles discussing the applicant’s research contributions, emails from journal editors inviting the applicant to peer-review a manuscript and confirming receipt of the review, and/or tax returns to demonstrate a high salary in the field.

National Interest Waiver

WHAT IS IT?

The National Interest Waiver permits an EB-2 applicant to waive the labor certification requirement if they can establish:

The applicant’s proposed endeavor has both substantial merit and national importance;
The applicant is well-positioned to advance the proposed endeavor; and
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus, of a labor certification.

Substantial Merit and National Importance:

This prong focuses on the applicant’s specific, proposed endeavor in the United States. This considers the potential prospective impact that the applicant’s work will have. Specifically, the endeavor will be deemed to have national importance if it has national or even global implications in the field, though even if the focus is of one geographic area of the United States, it may still be considered to have national importance. Documentation that can demonstrate substantial merit and national importance may include, but is not limited to:

The applicant’s detailed research plan or description of their proposed work in the United States, including an explanation of its national importance;
Documentary evidence showing that the proposed endeavor has national or global implications within a particular field; has potential to employ U.S. workers or produce substantial, positive economic effects; will enhance societal welfare or cultural/artistic enrichment; and/or impacts a matter that a U.S. government entity has described as having national importance or is the subject of national initiatives.

Applicant is Well-Positioned to Advance the Proposed Endeavor

The applicant must demonstrate that based on his/her education, experience, and expertise in the field as well as his/her record of success in research projects/work similar to that of the proposed endeavor, he/she is well-positioned to advance the proposed endeavor. This may be supported through documentary evidence, including letters of recommendation from experts in the field, academic credentials and transcripts, publications, patents and patent applications, peer-review activities, research projects, artistic exhibitions, and academic and professional memberships.
Additionally, it is beneficial if the applicant can demonstrate his/her specific plans for his/her proposed endeavor in the United States as well as any progress achieved in realizing those plans/goals. To demonstrate this, the applicant may provide a detailed research plan; business model; letters from prospective/potential employers, clients, or customers; evidence of research grants or other financial support; copies of contracts, agreements, or licenses relating to the proposed endeavor; and/or evidence of past work/research projects which the applicant intends to build upon or further develop. (NOTE: The applicant can still be well-positioned to advance the proposed endeavor based on his/her credentials, expertise, plans, and support even if there is no certainty that the applicant will be successful).

Waiving the Job Offer and Labor Certification:

Finally, to waive the job offer and labor certification through the National Interest Waiver, the USCIS will determine whether, on balance, it would be beneficial to the United States to do so. The USCIS may consider the following factors:

Whether, in light of the nature of the applicant’s qualifications or proposed endeavor, it would be impractical either for the applicant to secure a job offer or obtain a labor certification;
Whether, even if other qualified U.S. workers are available, the United States would benefit from the applicant’s contributions; (NOTE: An EB-2 visa applicant cannot receive the National Interest Waiver merely because of a labor shortage. The applicant must still demonstrate that their permanent residency in the United States would be beneficial to the United States).
Whether the national interest in the applicant’s contributions is sufficiently urgent to warrant forgoing the labor certification process;
Whether the applicant’s endeavor may lead to potential creation of jobs; and
Whether the petitioner is self-employed in a manner that generally does not adversely affect U.S. workers.

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