EB-2 Advanced Degree, Exceptional Ability, or National Interest Waiver
The second preference employment-based immigration category (EB-2) is for members of the professions holding an advanced degree or the equivalent, or 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 U.S., and whose services are sought by an employer in the U.S. A job offer and labor certification from the Department of Labor are generally required for the EB-2 category. Certain cases qualifying for a National Interest Waiver are not required to show a job offer and labor certification. Additionally, certain occupations (known as Schedule A occupations) are exempt from the labor certification process.
The EB-2 category breaks down as follows:
EB-2 Members of the Professions Holding an Advanced Degree or the Equivalent:
This category is for those applicants who will fill a job requiring an advanced degree or its equivalent. The U.S. Citizenship and Immigration Service (USCIS) considers the advanced degree requirement satisfied by the following: (1) a U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or (2) a U.S. bachelor’s degree or foreign degree plus five years of progressively more responsible experience. In the latter case, the bachelor’s degree requirement cannot be demonstrated by substituting work experience. USCIS takes the positions that, unless the labor certification or I-140 states otherwise, the five years of experience may be used both to establish equivalency of a master’s degree and to meet any experience requirement apart from the master’s degree.
It is important to note there are two agencies involved in the advanced degree-based EB-2 process, the Department of Labor and USCIS. An approved labor certification from the Department of Labor is required as part of this process. There is an interpretive conflict between the Department of Labor and USCIS with regard to the EB-2 educational and experience requirements, and it is highly recommended that competent counsel be retained to navigate this thorny issue.
EB-2 Exceptional Ability in the Sciences, Arts or Business
This category is for those possessing a degree of expertise in the sciences, arts, or business significantly above that ordinarily encountered in those fields. To qualify, the applicant must first demonstrate any three of the following:
- Degree relating to area of exceptional ability
- Letter from current or former employer showing at least 10 years of experience
- License to practice profession
- Person has commanded a salary or remuneration demonstrating exceptional ability
- Membership in a professional association
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
Comparable evidence may be submitted if the above categories are inapplicable. The applicant must demonstrate specifically how he or she will substantially and prospectively benefit the national economy, cultural or educational interests, or welfare of the U.S. A job offer and labor certification from the Department of Labor are required.
EB-2 National Interest Waiver:
Aliens seeking a National Interest Waiver (NIW) are seeking EB-2 permanent residence, but requesting that USCIS waive the labor certification and job offer normally required of EB-2 applicants. All EB-2 applicants (including NIW seekers) must first qualify as either an advanced degree professional or an alien of exceptional ability. Most NIWs are granted to those having exceptional ability. The initial criteria for an NIW are: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.