Employment-Based, Second Preference (EB2)

Employer and PERM Labor Required (unless in the national interest)

This immigrant visa category is for members of the professions holding advanced degrees, and foreign nationals of exceptional ability.

Members of the Professions Holding Advanced Degrees

Employer and PERM Labor Required

The USCIS defines an advanced degree as a professional or academic degree, given by a U.S. institution, beyond that of a baccalaureate. A foreign degree from an overseas institution may also be acceptable if the USCIS determines it to be equivalent to a U.S. degree. The USCIS also treats a baccalaureate degree followed by five years of progressively responsible employment experience as equivalent to an advanced degree.

In this EB2 category, the applicant must have a job offer in the profession for which s/he is academically prepared. The employer must obtain appropriate PERM Labor from the U.S. Department of Labor.

The labor certification must indicate that the position offered is one that requires the advanced degree or equivalent to perform the job.

Aliens of Exceptional Ability in the Sciences, Arts, or Business

Employer and PERM Labor Required

The USCIS has specified exceptional ability in the sciences, arts, or business as a degree of expertise significantly above that ordinarily encountered. To prove such exceptional ability, USCIS regulations propose submitting at least three of these kinds of documentation:

• a license to practice the profession or certification for a particular profession or occupation
• evidence of at least ten years of full-time experience in the occupation
• a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning, relating to the area of exceptional ability
• evidence that the foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
• evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
• evidence of membership in professional associations

The individual must have a job offer in the field of exceptional ability and the Employer must obtain a permanent labor certification (LC) from the Department of Labor. In addition, the employer must demonstrate that the individual will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.

Two-Step Analysis to Determine Exceptional Ability

Many types of cases, including EB2 exceptional ability petitions, are adjudicated by the USCIS based on the two-step analysis described in the USCIS policy memorandum entitled, Evaluation of Evidence submitted with Certain Form I-140 Petitions. As described in the memo, USCIS adjudicators first count the evidence to determine if the applicant meets at least three of the regulatory criteria. Then the adjudicators make a final merits determination looking at the totality of the evidence provided to decide whether the applicant is a person of exceptional ability.

National Interest Waiver

Employer and PERM Labor not Required

The national interest waiver (NIW) involves a standard higher than that required to establish a prospective national benefit. Since there are no criteria specifically outlined in the law as to what constitutes national interest waiver, seven factors have been suggested.

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