The EB-2 Employment-Based Second Preference Category

The EB-2 visa is the second preference employment based category for immigrant visas. It is reserved for people with exceptional ability or people with advanced degrees. An advanced degree is considered to be a U.S. master’s degree or higher, or a foreign degree equivalent.  Alternatively, an individual could qualify for an equivalent of an advanced degree by possessing a bachelor’s degree plus 5 years of progressively responsible experience in a professional occupation.

Most people who apply in the EB-2 category must have a certified labor certification.  However, some people may qualify for this category without a labor certification if they can prove they have exceptional ability or an advanced degree AND qualify for a National Interest Waiver (NIW). The NIW is available for physicians serving 5 years in a medically underserved area or for individuals who work in an area of national importance. NIW requirements will be explained in more detail below.

Most applicants in the EB-2 category qualify based on employer sponsorship.  The employer must first file a labor certification for a position that requires an advanced degree.  See our article on PERM labor certifications.  Once the labor certification is certified, the employer can then file an I-140 immigrant visa.  Depending on the individual’s nationality and the backlog in immigrant visa numbers as published in the monthly Visa Bulletins, the applicant may be able to file an I-485 green card application concurrently with the I-140.  Read more information about I-140 immigrant visas in another article.

What is Exceptional Ability?

Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.  In order to show the person has exceptional ability under the immigration regulations, the petition must be able to show at least three of the following criteria:

  • Official academic record showing that you have 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 your occupation
  • A professional license or certification to practice your occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable

Merely submitting evidence in three of these categories does not guarantee approval under the exceptional ability standard. You also must describe how this evidence shows that your degree of expertise is significantly above the ordinary. Expert letters as well as other types of evidence can (and should) be used.

What is a National Interest Waiver (NIW)?

This category does not require a labor certification or a job offer from an employer.  This is important for many people, because in certain situations, the person does not have an employer who is willing to hire them for a permanent position, or their position is one in which a labor certification would not work for them for several reasons.  Examples of cases where an NIW would be needed include the following: a person who is completing a post-doc (because this is not a permanent position), a position where the basic requirements are so minimal that there will be too many minimally qualified applicants and other factors such as research skills need to be taken into account (which cannot be done with a labor certification), or the person is an inventor who is self-employed.  In these cases, the applicant may be able to self-petition for an I-140 NIW.

This category requires that the applicant show that they have an advanced degree or have exceptional ability AND that it is in the national interest of the U.S. to waive the labor certification process in their case. Normally, it is best to prove that the applicant meets the requirements of exceptional ability rather than just showing an advanced degree.  Once that requirement is met, the applicant then needs to show the following in order for the application to be approved for an NIW:

  1. The Petition falls within an area of “substantial intrinsic merit.” It must be shown that the applicant is working in a field that is in the U.S. interests. Many “areas or fields” can fall within this criterion, such as research within the medical, engineering, education, business, technology, etc. fields.
  2. National in Scope – the applicant’s employment or its impact cannot just be local, but should be national in scope. For example, medical research is usually considered national (and even international) in scope due to the fact that it has the potential to effect people all over the country (and world). On the other hand, an engineer that designs bridges in a particular state would not be national in scope.
  3. The benefit to the nation from the applicant’s services outweighs the detriment to the nation from the applicant circumventing the labor certification process. Evidence of the significant contributions the applicant has made thus far, as well as potential in the future, should be submitted.

It is very important to determine whether you qualify for the EB-2 category, as it can greatly impact when you are eligible to file for a green card.  The difference between the EB-2 and EB-3 categories can be years of waiting. Further, if you are a post-doctoral fellow, in a non-tenured track position for a University or in a position where your employer is not willing to file a labor certification on your behalf, attorneys at Weinstock Immigration Lawyers can analyze your case in great detail to see if you qualify for NIW.  We have successfully filed a large number of NIW applications for a variety of positions and occupations. So if you are interested in filing in the EB-2 category for yourself or for your employee, call our office today to speak with one of our immigration experts. We will help you determine the best strategy and help you avoid common issues that can lead to delays and denials.