The Second Preference EB-2 Professionals Holding "Advanced Degrees" or Persons of "Exceptional Ability"

A Second Preference permanent residence petition (EB-2) is an employment-based petition for permanent residence for persons "holding advanced degrees" or of "extraordinary ability" in the   Arts, Sciences, or Business.  Based on the preference category system the total number of EB-2 immigrant visas available in a government fiscal year (October 1-September 30) is 28.6% of the yearly worldwide limit, plus any unused Employment First Preference visas.

Aliens with extraordinary ability are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." The Applicant must be one of "that small percentage who have risen to the very top of the field of endeavor," to be granted this classification.

Overview
The second preference category includes:

• Members of the professions holding advanced degrees; and,
• Foreign nationals who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.

"Advanced Degree"

To qualify as a member of the professions the foreign national must have an advanced degree, which the DHS/USCIS takes to mean "any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' This essentially means a United States masters degree or above. The DHS/USCIS has indicated that a U.S. or equivalent foreign baccalaureate followed by at least five years of progressive experience in the specialty will be the equivalent to a masters degree. If the profession requires a degree higher than a masters degree the foreign national must have that degree.

"Exceptional"

The word "exceptional" in the context of this category means that the individual must have a degree expertise significantly above that ordinarily encountered. To qualify as a foreign national of exceptional ability for the purpose of second preference classification, the individual must have a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three of the following criteria:

1. An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other DHS/USCIS substitution of learning relating to the area of exceptional ability;
2. Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which s/he is being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If these standards do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

The EB-2 category requires that the foreign worker must have a job offer and obtain a labor certification for the proposed position.

However, it is possible to avoid the requirement of a labor certification or job offer in certain cases:

However, it is possible to avoid the requirement of a labor certification or job offer in certain cases:

Schedule A Designation

The Department of Labor has made a schedule of occupations for which it delegates authority to USCIS to approve labor certifications. Schedule A, Group I, includes physical therapists and nurses. Schedule A, Group II includes foreign nationals of exceptional ability in the sciences and arts (except performing arts). To apply for Schedule A designation, the employer must submit a completed, uncertified Form ETA-750 in duplicate to USCIS along with the I-140 petition.  For more information about Schedule A please see our discussion on Nurse Visas.

National Interest Waiver (NIW)

The National Interest Waiver (NIW) is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts, or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D., Ph.D. students also qualify). An alien may apply for permanent residence status ("green card") and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest.

The national interest waiver is a good option for those who do not wish to wait several years for labor certification or those who do not wish to be tied to a specific employer during labor certification. The NIW applicant sponsors himself/herself (self-petitions) and is not required to have a job offer. NIW applicants may make additional "green card" applications in other preference categories while an NIW petition is pending. Furthermore, if the NIW applicant is employed, the employer will not have knowledge of a pending NIW application.
The NIW also applies to physicians. Physicians who agree to work full time for an aggregate of five years (not including time in J-1 visa status) in a designated "health professional shortage area" (HPSA), in a VA hospital, or where a federal agency or State Department of Public Health has determined that the physician's work is in the public interest.

The National Interest Waiver has the obvious advantage that a U.S. sponsor is not required. The applicant sponsors herself/himself based upon his/her outstanding achievements and professional knowledge. Consequently, the applicant controls her/his own fate. Furthermore, by avoiding the labor certification process, substantial time can be saved in the processing of the petition. Some of the advantages of this category include:

• Does not require a labor certification.
• Does not require a permanent job offer in the United States.
• Faster than the labor certification process. National Interest Waiver applicants can take advantage of concurrent filing and obtain work authorization and an advance parole document (allowing an applicant to travel internationally) much sooner than with labor certification. National Interest Waiver applicants may also obtain work and travel authorization for spouse and children.
• More flexible than the labor certification process. Compared to the labor certification process, National Interest Waiver applicants can change jobs much sooner and can change to a much broader range of job opportunities.
• National Interest Waiver applicants can self-petition. That is, the petition does not require the signature of anyone at the university or company where you work. In fact, in some cases, you can even be self-employed.

For additional discussion of the National Interest Waiver (NIW) click here.