Exceptional Candidates May Qualify for EB2 Without Advanced Degree

As many MurthyDotCom readers know, the common qualifications for the employment-based, second preference (EB2) category is possession of an advanced degree or its equivalent. This requirement poses a challenge for many individuals who, because of their educational histories, are limited to filing in the employment-based, third preference (EB3) category, and hence subject to much longer processing times to obtain lawful permanent residence (i.e. a “green card”). However, for some foreign nationals, the lack of an advanced degree may not necessarily be a barrier to filing an EB2 case. There is an often-overlooked alternative way to qualify for EB2 classification based upon an individual’s exceptional ability.

Overview of EB2 Exceptional Ability

Exceptional ability for purposes of EB2 is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” This is an alternative to the EB2 option generally available only to advanced-degree professionals. One who is seeking to qualify for EB2 based upon “exceptional ability” needs to demonstrate, through a comparative analysis, how his/her skill set is “significantly above” others in the field. Thus, the exceptional ability option is potentially available to individuals who do not meet the advanced degree requirement, but who have noteworthy accomplishments in their respective fields that distinguish them from others in the profession.

Please note that EB2 exceptional ability should not to be confused with the employment-based, first-preference (EB1) category for extraordinary ability, which carries a much higher standard for eligibility.

Using LC with EB3 Requirements to Obtain EB2 Classification

The starting point for an EB2 exceptional ability case is the filing of a PERM labor certification (LC) application with the U.S. Department of Labor. The PERM LC filing must set forth the minimum job requirements, under standard procedures. It is possible to utilize an LC with EB3 level requirements for an EB2 exceptional ability case, if the beneficiary can demonstrate exceptional ability, and the employer can establish the need for an employee with that level of ability.

Criteria to Qualify for EB2 Exceptional Ability

In order to qualify for EB2 based on exceptional ability, the beneficiary must first meet at least three of the following criteria:

A) 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) At least ten years of full-time experience in the occupation for which s/he is being sought

C) A license to practice the profession or certification for a particular profession or occupation

D) Evidence of receipt of a salary, or other remuneration for services, which demonstrates exceptional ability

E) Evidence of membership in professional associations

F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

If the above standards do not readily apply to the occupation, comparable evidence can be used to establish eligibility.

If at least three of the criteria are met, the U.S. Citizenship and Immigration Services (USCIS) reviews the case further to determine whether the evidence demonstrates that the beneficiary is, in fact, someone who possesses “a degree of expertise significantly above that ordinarily encountered” in the relevant field. The USICS closely scrutinizes EB2 exceptional ability cases, so it is critical to evidence how the beneficiary’s skills distinguish the individual from others in the field.

Murthy Law Firm’s Success in Obtaining EB2 Exceptional Ability Approvals

Attorneys at the Murthy Law Firm have recently received a number of EB2 exceptional ability approvals. A brief summary of several of these cases is provided below. Please note that the clients involved in these filings all provided the Murthy Law Firm with express permission to publicly discuss the cases on MurthyDotCom.

Example 1

Client 1 is a professional with over twenty years of experience in the pharmaceutical manufacturing industry. Since his foreign bachelor of pharmacy degree was not considered equivalent to an advanced degree for EB2 purposes, he approached the Murthy Law Firm looking for alternatives to his long-delayed EB3 case.

Client 1 had evidence showing he had developed a method of manufacturing certain pharmaceutical drugs that drastically reduced processing time and production costs. His sponsoring employer demonstrated the need for this individual’s years of experience. Accordingly, the USCIS approved Client 1’s case under the EB2 exceptional ability category.

Example 2

Client 2 is an engineering professional who had only recently completed his bachelor’s degree. Thus, filing under the standard EB2 requirements was not an option, as he had neither a master’s degree nor five years of progressive post-baccalaureate experience. However, he had developed a tool for his employer that was featured in several international engineering trade shows, and had functions making it distinguishable from similar tools on the market. Given the connection between the client’s innovations and the offered job, the USCIS approved this case under the EB2 exceptional ability category.

Example 3

Client 3 is an IT professional primarily involved in software development who did not qualify for a standard EB2 case. However, this individual had developed a software solution that proved to be extremely useful to a U.S. federal government agency. Based on solid evidence of this accomplishment, along with documentation demonstrating his employer’s needs for Client 3’s advanced skill level, the USCIS approved the EB2 exceptional ability case.

Conclusion

Whether a foreign national can qualify for EB2 based on exceptional ability should be determined on a case-by-case basis. The examples above provide insight into the types of cases for which this approach may be appropriate. It certainly would be possible to document, to the satisfaction of the USCIS, many variations of possible expertise that is significantly above others in the specific field, and that demonstrates a level of expertise required by the employer. Foreign nationals who would like assistance with determining whether they may be good candidates for the EB2 exceptional ability are invited to schedule a consultation with a Murthy Law Firm attorney.

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