Immigration Law Firm

Second Preference Employment-Based Benefit for Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability (EB-2)

The EB-2 category is available to members of the professions holding advanced degrees 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 a United States employer. Individuals eligible for a national interest waiver, discussed below, may be eligible to self-petition.

General Requirements:

  • Under the advanced degree prong, the offered professional position must require an advanced degree. An advanced degree or its equivalent means the individual possesses at least a master’s degree in the field or its equivalent in education and work experience. Generally, the equivalency to a master’s degree can be established by a bachelor’s degree plus five years of progressive work experience. The degree should be related to the job that is offered.
  • To qualify as an individual of exceptional ability in the sciences, arts, or business, the candidate must show that he or she have obtained a "degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." "Art" includes athletes and entertainers. Exceptional ability can be established by any three of the following:
    1. A degree relating to the area of exceptional ability;
    2. A letter from a current or former employer showing at least 10 years of experience;
    3. A license to practice a profession;
    4. The individual has commanded a salary or remuneration demonstrating exceptional ability;
    5. Membership in a professional association; and
    6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. Comparable evidence, such as expert opinion letters, may also be submitted to support an exceptional ability classification.
  • Generally, employers must go through the PERM labor certification process to hire an EB-2 employee. However, there are two important exceptions to the labor certification requirement:
    1. An employer or individual may obtain a national interest waiver and exemption from the labor certification process if the employer can convince the Government that the benefit of the individual’s skills to the United States would outweigh the national interest in protecting U.S. workers through the LC process; or
    2. Occupations listed on Schedule A (professional nurses, physical therapists, certain aliens in the sciences or arts, and certain performing artists) are exempt from most of the requirements of the labor certification process but must still comply with certain criteria.
  • Approximately 28.6% of worldwide visas are allocated for the EB-2 category, plus any unused first preference visas. Of substantial benefit to prospective immigrants, there is currently no visa backlog in the EB-2 category, with the exception of workers from China and India.

Derivative Benefits:

  • The spouse and unmarried children under the age of 21 may accompany the principal EB-2 alien to the United States. The spouse and unmarried children obtain permanent residence, are allowed to work in the United States and may apply to become citizens after five years.

Procedure:

  • The sponsoring employer must first complete the labor certification process, obtain a national interest waiver, or clearly show that the proposed employment position is within Schedule A. Individuals eligible for a national interest waiver may be eligible to self-petition (may not need a sponsoring employer).
  • The employer then files an I-140 petition on behalf of the EB-2 eligible individual. Upon approval of the I-140, the individual is eligible to apply for an immigrant visa at the appropriate consulate abroad or adjust status (if lawfully maintaining status in the United State). Employees from India and China may face a significant wait until a visa number is available.

Example:

A university in the United States seeks to hire a famous French chemist as a professor in the school’s Chemistry Department. The university seeks to avoid the labor certification process by obtaining a national interest waiver. The university demonstrates that the chemist meets all of the requisite educational requirements for the position, does work that has substantial intrinsic merit that would benefit the nation at large, and has a demonstrable record of achievements that show the chemist would benefit the United States to a degree substantially greater than an available U.S. worker having the same minimum qualifications. USCIS grants a national interest waiver and approves the subject I-140. The chemist then obtains a visa in Paris and enters the United States as a permanent resident.

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