EB-2 Professionals with advanced degrees or persons with exceptional ability

Who is eligible for an EB-2?

There are two different categories under which a worker can qualify for an EB-2 visa. They are:

1. Workers who are members of the professions holding advanced degrees or their equivalent, and
2. Workers who have exceptional ability in the sciences, arts, or business and will substantially benefit the U.S.

Who are members of the Professions Holding Advanced Degrees?

Any U .S. employer can file for an EB-2 visa when the job at issue requires an "advanced degree." An advanced degree is defined as any degree "beyond the baccalaureate." In the United States, this often means a master's degree. However, it may be possible for a foreign degree to be between a bachelor's but short of a master's degree. An advanced degree may also be above a master's degree. For example, a law degree or medical degree is an advanced degree under the law.

As an alternative to the master's degree requirement, any alien may possess a bachelor's degree AND five years of experience in the profession. This can serve as the equivalent of an "advanced degree." An alien in this position must have at least a bachelor's degree as experience cannot substitute for the bachelor's degree.

Who are workers of Exceptional Ability?

A worker of exceptional ability must have a degree of expertise significantly above the ordinary. This is established by satisfying at least three of the following six criteria:

1. An official academic record showing a degree, diploma, certificate or similar award from a college, university , school or other institution of learning relating to the area of exceptional ability;
2. At least ten years of full-time experience in the occupation documented by letters from current or past employers;
3. A license to practice the profession or certification for the particular profession or occupation;
4. Evidence that the alien has commanded a salary or other remuneration for services demonstrating exceptional ability;
5. Membership in professional associations (there is no requirement that the professional associations require outstanding achievement for admission); or
6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

What is a National interest waiver?

As mentioned earlier, most employment based visas require the alien to show that he or she has a bona fide job offer from a U.S. employer. However, aliens with exceptional ability in the sciences, arts, or business, may ask the USCIS to waive the requirement that they have a job offer. If an alien receives a national interest waiver, he or she does not have to go through the PERM process.

An alien may only receive such a waiver if doing so would be in "the national interest." This waiver process is unique to the EB-2 visa category.

To receive a national interest waiver, an alien must demonstrate two things:

In general, an alien must prove two elements in order to obtain a national interest waiver:

1. The alien's employment position is in the national interest of the United States. This means that the employment must be important to the whole United States and not just one individual company, city, or region.
2. The alien must make a real contribution or impact in their area of employment. The alien must be more qualified and / or accomplished than the average person working in that same field of national interest.

When considering whether an alien qualifies for a national interest waiver, the government has utilized a defined set of criteria. Those criteria focus on whether the alien's employment would:

1. improve the U.S. economy;
2. improve wages and working conditions of U.S. workers;
3. improve education and programs for U.S. children, and under-qualified workers;
4. improve health care;
5. provide more affordable housing;
6. improve the U.S. environment by making more productive use of natural resources; and finally,
7. whether an interested government agency requests the alien's waiver be granted

The national interest waiver requires adequate proof of the above factors before it is granted. We recommend that any person interested in pursuing one consult with an experienced immigration attorney before undertaking the process.

If you believe you qualify for an EB-2 visa or would like to employ an alien under an EB-2 visa please contact us. We have successfully obtained national interest waivers for clients and will be happy to assist you in any way you or your company require. The experienced and skilled immigration attorneys at Shihab & Associates Co., LPA are fully prepared to help you along every step of the way.