Employment-Based Immigration: Second Preference EB-2
Eligibility Criteria
| Sub-Categories | Description | Evidence |
|---|---|---|
| Advanced Degree | The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). | Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty. |
| Exceptional Ability | You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability "means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." | You must meet at least three of the criteria below.* |
| National Interest Waiver | Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. | You must meet at least three of the criteria below* and demonstrate that it is in the national interest that you work permanently in the United States. |
Criteria
▶ Letters documenting at least 10 years of full-time experience in your occupation
▶ A license to practice your profession or certification for your profession or 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
* Note : Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750.
Please see the Department of Labor's "Foreign Labor Certification" link to the right for more information.
To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker. For more information about filing,see the "Forms" link to the right.
Eligibility Criteria
Questions and Answers
열고닫기1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b) (2).
The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).열고닫기2. What is the EB-2 Immigrant Visa Category?
Congress created the employment-based second preference visa category with the Immigration Act of 1990.
This classification includes:열고닫기3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
No, not every individual with an advanced degree will qualify.
It must be demonstrated that the occupation is a profession.The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools,colleges, academics, or seminaries.열고닫기4. Can a petitioner qualify as a member of a profession holding an advanced degree?
Yes. A petitioner can qualify if the:
- Petitioner will be working for a U.S. employer who files a petition on the petitioner’s behalf
- Petitioner is a member of the profession holding an advanced degree or foreign equivalent degree
- Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Petitioner meets all the specific job requirements listed on the individual labor certification열고닫기5. Can a petitioner qualify as an individual of exceptional ability in the sciences, arts, or business?
Yes. A petitioner can qualify if the:
- Petitioner will be working for a U.S. employer who files a petition on the petitioner’s behalf
- Petitioner will be working in the sciences, arts, or business
- Petitioner has exceptional ability in the sciences, arts, or business
- Petitioner will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Petitioner meets all the specific job requirements listed on the individual labor certification열고닫기6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.
열고닫기7. How is exceptional ability defined?
8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
열고닫기8. How can a petitioner establish that he or she has exceptional ability in the sciences, arts, or business?
First, the petitioner would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii). The criteria are:
(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the petitioner)have a degree “relating to” the area of exceptional ability.
This means that the petitioner’s degree need not be in the same field of claimed exceptional ability,but only that it be related to that field. For example, a petitioner seeking to start an internet-related business and who claims exceptiona l ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.
Second, the petitioner must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.열고닫기9. If a petitioner is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
Yes. 8 CFR 204.5(k)(3)(iii), states:
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above.
Irrespective of the type of evidence presented, the petitioner has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.
When comparable evidence is presented, the petitioner must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. There is no limitation on the type of comparable evidence the petitioner may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the petitioner might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators(entities that provide resources, support, and assistance to petitioner to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.열고닫기10. How does a petitioner show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
Petitioner should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the petitionerial enterprise is claimed to benefit. For example, the educational interests of the United States may be met by a petitionerial enterprise that establishes tutoring instruction learning centers throughout the United States. As another example, the petitioner could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the petitionerial enterprise to be located in the United States.
It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas.
열고닫기11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can a petitioner qualify for a NIW?
Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.
Petitioner, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.열고닫기12. If a petitioner wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
Yes. The petitioner must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
열고닫기13. If a petitioner wants to file for a NIW must he or she have an actual employer in the United States?
No. Pursuant to INA 203(b)(2)(B), a petitioner does not need to have an actual job offer from a U.S.employer if he or she qualifies for a NIW.
In other words, a petitioner may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.열고닫기14. Is there a definition of “national interest”?
The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history.
However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.열고닫기15. What are the three prongs laid out in the NYSDOT decision?
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the petitioner will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.열고닫기16. How does the first prong of NYSDOT relate to petitioner?
Under the first prong of the NYSDOT test, the petitioner must seek employment in an area that has substantial intrinsic merit.
It is important for the petitioner to focus on the proposed employment rather than the petitioner’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.열고닫기17. How does the second prong of NYSDOT relate to petitioner?
The second prong of the NYSDOT test requires that the petitioner demonstrate that the proposed benefit to be provided will be national in scope.
For example, the petitioner might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create(or “spin off”) related jobs in other parts of the nation. Or, as another example, the petitioner might be able to establish that the jobs created locally will have a positive national impact.
As described below, and as the law contemplates, USCIS will give due consideration to petitioner who establish that their work will serve the national interest to a substantially greater degree than the work of others in the same field.열고닫기18. How does the third prong of NYSDOT relate to petitioner?
NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.
An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the petitioner “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the petitioner must document how their work will benefit that field.
NYSDOT states:
“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”
The petitioner who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.
For example, the petitioner may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
