EMPLOYMENT BASED IMMIGRANT VISAS - SECOND PREFERENCE
EB-2 Professionals Holding an Advanced Degree
If you hold an advanced degree, such as a master’s degree or higher, and you receive a job offer from a U.S. employer, you may qualify for permanent residency in this category. The position offered to you must also require an advanced degree or its equivalent as the minimum level of education, and it is not sufficient that you have such degree if the position also accepts applicants with lesser qualification. If your diploma was obtained from a foreign institution, you must receive an independent credential evaluation which shows that your degree is the U.S. equivalent of a master’s degree or higher. If you have a bachelor’s degree but no advanced degree, you may still qualify under this category if you can show that you obtained at least 5 years of progressive, post-degree work experience in a closely related field. What qualifies as “progressive” experience is not defined by law, but generally you must show you had advancing levels of responsibility and knowledge in your specialty during the 5 years. In order to apply, your employer must first obtain a labor certification (“PERM”) from the U.S. Department of Labor, then submit a Form I-140 to the USCIS on your behalf. Self-petitions are not permitted unless you qualify for a National Interest Waiver (NIW).
EB-2 Persons with Exceptional Ability
Even if you do not have the requisite advanced degree or bachelor’s degree with 5 years of progressive work experience, you may still qualify for EB-2 if you are considered to have exceptional ability in your field. “Exceptional ability” here means having a degree of expertise significantly above that ordinarily encountered. It can be demonstrated by meeting at least 3 among the criteria set forth by the regulations, including a diploma or certificate from a school of your area of expertise, 10 years of full-time related experience, a license to practice in your profession, evidence of a higher salary than others, membership in professional associations, and recognition of your achievement by others. Other comparable evidence is also accepted. This category can be especially useful for someone who has many years of professional experience but has not completed a bachelor’s degree, or someone who has a bachelor’s degree and significant achievements but does not yet have 5 years of progressive post college work experience. A labor certification and a Form I-140 petition from your employer is also required for this category. Self-petitions are not permitted unless you qualify for a National Interest Waiver (NIW).
National Interest Waiver (NIW)
Although all EB-2 categories require that you have a U.S. employer first obtain a labor certification and then file a Form I-140 immigrant visa petition on your behalf, you may be exempt from such requirement if it would be in the “national interest” of the U.S. In order to be eligible for this waiver, you must first be a professional holding an advanced degree or its equivalent, or have “exceptional ability” as defined by the regulations. You must then meet a three-prong test by showing that (1) your proposed endeavor has both substantial merit and national importance, (2) you are well positioned to advance the proposed endeavor, and (3) on balance, it would be beneficial to the U.S. to waive the requirement of a job offer. Your proposed endeavor can be in a variety of fields, including business, science, health, technology, health, culture, or education. If you qualify under NIW exemption, you may self-petition a Form I-140 with the USCIS without a job offer from a U.S. employer, and you are also exempt from having to receive a labor certification from the U.S. Department of Labor. This waiver can also be very useful for self-employed entrepreneurs whose products or services can benefit the U.S. economy and people. .