EB-2 for Advanced Degree Workers or National Interest Waivers

A member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability may be eligible for an employment-based visa if they meet the occupational categories and requirements. 

Advanced Degree – The position sought must require an advanced degree and the applicant must possess such a degree or its equivalent (demonstrated by a baccalaureate degree plus 5 years work experience in the field). Appropriate documentation includes:

• An official academic record showing a U.S. advanced degree or a foreign equivalent degree
• An official academic record showing a U.S. baccalaureate degree, or a foreign equivalent degree and letters from current or former employers at least 5 years of progressive post-baccalaureate work experience in the specialty

Exceptional Ability – Applicants must be able to show exceptional ability in the sciences, arts, or business to qualify. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Exceptional ability may be demonstrated by meeting at least three of the following criteria

• Official academic record showing that a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
• Letters documenting at least 10 years of full-time experience in the occupation.
• A license to practice the profession or certification for the profession or occupation.
• Evidence of commanding a salary or other remuneration for services that demonstrates exceptional ability.
• Membership in a professional association(s).
• Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
• Other comparable evidence of eligibility is also acceptable.

National Interest Waiver – Individuals, if they qualify, can obtain a National Interest Waiver which exempts the EB-2 applicant from (i) the normal requirement of a job offer from a U.S. employer and (ii) from having to obtain a labor certification from the U.S. Department of Labor. They must meet at least three of the above criteria and demonstrate that it is in the national interest that they work permanently in the United States. 

Though the positions that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. “National Interest” itself is not defined, but the USCIS offers three criteria that must be met to qualify. The criteria are that: 

1) The waiver applicant must seek employment in an area that has substantial intrinsic merit. 
2) The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope. 
3) The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant. 

An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. The individual waiver applicant who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an National Interest Waiver. For example, they may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field. Recent DHS and USCIS announcements support this favorable position towards job creators.

Family of EB-2 Visa Holders

Spouses and children under the age of 18 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the process where the visa holder and his or her spouse are applying for permanent resident status (status as a green card holder), the spouse is eligible to file for an Employment Authorization Document (EAD). 

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