Immigrant Classifications - Employment-Based

Advanced Degree or Alien of Exceptional Ability/ National Interest Waiver, EB-2

Section 203(b)(2) of the Immigration and Nationality Act ("INA") permits the issuance of immigrant visas to aliens with advanced degrees or those with exceptional ability. Foreign nationals or their U.S. employers may seek classification for such a worker through filing an I-140 petition. Advanced Degree or Exceptional Ability I-140s fall under the employment-based second preference category ("EB-2") in the visa bulletin.

To qualify an alien beneficiary for EB2 classification, the petitioner may demonstrate either that the alien possesses an advanced degree or that he possesses exceptional ability. An advanced degree is a U.S. Masters or higher degree, or its foreign equivalent. In addition, USCIS considers a U.S. Bachelors degree plus five years of progressively responsible experience to equate to a Masters degree. Alternatively, EB-2 classification may be sought on behalf of those aliens who, possess exceptional ability in the sciences, arts or business. Exceptional ability must be demonstrated through at least 3 of the following, which together must demonstrate a level of expertise significantly above that ordinarily encountered in the field:

  1. An official academic record showing that the alien has 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. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  5. Evidence of membership in professional associations;
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; or
  7. Comparable indicia.

Typically, those seeking EB-2 classification must file a labor certification application. However, there is a "National Interest Waiver" exception to this rule for alien beneficiaries who can satisfy the above requirements and can also demonstrate that:

  1. The beneficiary will work in the U.S. in an area of "substantial intrinsic merit;"
  2. The impact of the beneficiary’s work will be national in scope; and
  3. Waiving the labor certification requirement would benefit the national interests of the United States.

An alien may self-petition for a National Interest Waiver I-140.

There are special National Interest Waiver provisions available for physicians who agree to serve in a medically underserved area.

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