EMPLYMENT-BASED SECOND PREFERENCE (EB-2) CATEGORIES
ALIENS OF EXCEPTIONAL ABILITY AND PROFESSIONALS WITH ADVANCED DEGREES
Persons who fall within the second preference employment-based category include members of the professions who (i) hold advanced degrees, or (ii) because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or the welfare of the United States. Additionally, a U.S. employer must be seeking the person’s services in the sciences, arts, or business.
To qualify as a member of the professions with an advanced degree, the position offered must require (and the person must have) either (i) master’s degree (or foreign equivalent degree) in a specialty area; or (ii) a bachelor’s degree (or foreign equivalent degree), plus five years of progressively responsible experience in the area of specialty.
To qualify as an alien of exceptional ability, the person must be able to prove his or her rare or unusual talents by providing at least three of the following: (i) a degree relating to the area of exceptional ability; (ii) letter(s) from current or former employer(s) documenting at least ten years of full-time experience; (iii) a license to practice a given profession; (iv) evidence that the person has commanded a high salary or remuneration demonstrating exceptional ability; (v) membership in a professional organization; or (vi) recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Note that comparable evidence may be submitted if above categories are inapplicable. This evidence may include expert opinion letters. Also note that “formal recognition” in the form of certificates and other documentation that are contemporaneous with the claimed contributions and achievements may have more weight than letters prepared for the petition ‘recognizing’ the person’s achievements.
ALIENS WHOSE WORK IS IN THE NATIONAL INTEREST: EB-2 NATIONAL INTEREST WAIVER (NIW)
Foreign Nationals who seeks a “national interest waiver” must first demonstrate that she/he is a member of professions holding an advanced degree (or their equivalent) or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. Additional the self-petitioner, must establish that it would be in the national interest to waive the job offer requirement by a United States employer. Thus, those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and file their uncertified labor certification directly with USCIS along with their Form I-140, Immigrant Petition for Alien Workers.
NEW FRAMEWORK FOR EVALUATING NIW PETITIONS
In 1998, under the legacy Immigration and Naturalization Service, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a precedent decision establishing a framework for evaluating national interest waiver petitions. Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).
Overturning nearly two decades of precedent on how an individual qualified for the National Interest Waiver, the AAO in December 2016 issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which vacated NYSDOT on which USCIS routinely relied when adjudicating NIW petitions.
Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.