Employment-based Second Preference Category  (EB-2)

There are three types of EB-2 Visas.

EB-2(A): This category is for foreign nationals professionals with an 'advanced degree' (masters degree or higher) and with a job offer from a U.S. company

EB-2(B): This category is for foreign nationals with 'exceptional ability' in the sciences, business or arts and with a job offer from a U.S. company

EB-2(C): This category is for foreign nationals with exceptional ability, or an advanced degree, who can show that their activities will substantially benefit the U.S. national interest

Initial evidence. A foreign national must first document that he/she is a professional holding an advanced degree or a person of exceptional ability in the sciences, the arts, or business.

EB-2A. To show that you are a professional holding an advanced degree, the petition must be accompanied by:

• An official academic record showing that the applicant has a United States advanced degree or a foreign equivalent degree; or
• An official academic record showing that the applicant has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

EB-2B. Alternatively, to show that the foreign national is a person of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

• An official academic record showing that the applicant 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;  
• Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-timeexperience in the occupation for which he or she is being sought  
• A license to practice the profession or certification for a particular profession or occupation;  
• Evidence that the applicant has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

• Evidence of membership in professional associations; or

• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

• If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Other requirements. You must also provide evidence that your services are sought by a United States employer, who must engage in the Labor Certification recruitment process as discussed on a separate page, or you may apply for a National Interest Waiver of that process, discussed below.

EB-2C. National Interest Waiver

You may obtain Permanent Residency without an employer and avoid the recruitment requirements of normal Labor Certification with this process.

The "national interest" test is not defined in the statute or regulations but requires a showing significant contributions for "prospective national benefit."

Unfortunately, the statute and the regulations also fail to define "prospective national benefit." However, the exemption "in the national interest" was addressed in Matter of [name not provided], EAC 92 091 50126 (AAU July 21, 1992). (This case is popularly referred to as Mississippi Phosphate). The case listed seven factors that may becconsidered in applying the national interest test:

1. Improving the economy;
2. Improving wages and working conditions of United States workers;
3. Improving education and training programs for United States children and under qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and /or older, poorer U.S. citizens;
6. Improving the U.S. environment and making more productive use of U.S. resources; or
7. A request from an interested United States governmental agency.

This list is by no means exhaustive. The national interest waiver has been approved in a variety of fields and positions.

In 1998 the Immigration and Naturalization Service (INS) published a precedent decision further clarifying their interpretation of the regulations and thereby restricting the use of national interest waivers (NIWs) as a way to bypass labor certification for individuals in the EB-2 immigrant visa category. This case is called Matter of N.Y. State Department of Transportation (NYSDOT)

In NYSDOT the INS set forth a new three-part test that foreign nationals must satisfy to obtain an NIW. Generally speaking, the first test is the easiest to meet, and the third test is most difficult. To satisfy the NIW threshold, the petition must show that:

• The foreign national's work is in an area of substantial intrinsic merit;
• The proposed benefit of the foreign national's work is national in scope; and
• The foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

The third NYSDOT prong is difficult to satisfy in light of the immigration agency's bias toward the labor certification process. Letters from experts are the most convinciing evidence to show that the foreign national's work is very much respected in his/her field of endeavor, and that their work has been significant and had an impact on the field.

In order to receive an evaluation of your potential application for a self-sponsored National Interest petition, please email the following items:

1. Complete Curriculum Vitae or resume. The CV should include any U.S. government funded projects on which you are working and the grant numbers, if applicable. The extraordinary ability and national interest applications are more favorably viewed if you are working on government funded projects. Please include all of your publications. If you have been asked to serve as a publications reviewer, or as a judge of the work of others, please describe that.
2. One to two page description of what you do and why it is important to U.S. taxpayers.
3. The names of at least five individuals who might be willing to write letters of recommendation on your behalf. Please include where they work. Normally, the Immigration Service is less impressed when more than two of the letter writers have the same employer as yours. The more letter writers that you can provide the better. Please indicate if there is anything special about any of these people that we should know. Describe their positions and credentials.
4. Please include your telephone numbers so that we may contact you.

EB-2 Employment-based Permanent Residency, Schedule A, Group II, Exceptional Ability in the Sciences or Arts

An employer may also avoid the recruitment requirements of normal Labor Certification by seeking a Schedule A labor certification under Group II by filing with DHS, as part of its labor certification application, documentary evidence of exceptional ability in the sciences or arts (note that those in the performing arts have a separate set of criteria which is shown below)

An employer seeking labor certification on behalf of a prospective employee as an applicant of exceptional ability in the sciences or arts (excluding those in the performing arts) must file documentary evidence showing the widespread acclaim and international recognition accorded the alien by recognized experts in the applicant's field; and documentation showing the applicant's work in that field during the past year did, and the applicant's intended work in the United States will, require exceptional ability. In addition, the employer must file documentation about the alien from at least two of the following seven groups:

(i) Documentation of the applicant's receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;

(ii) Documentation of the applicant's membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;

(iii) Published material in professional publications about the applicant, about the applicant's work in the field for which certification is sought, which shall include the title, date, and author of such published material;

(iv) Evidence of the applicant's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought;

(v) Evidence of the applicant's original scientific or scholarly research contributions of major significance in the field for which certification is sought;

(vi) Evidence of the applicant's authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation;

(vii) Evidence of the display of the applicant's work, in the field for which certification is sought, at artistic exhibitions in more than one country.

An employer seeking labor certification on behalf of an applicant of exceptional ability in the performing arts must file documentary evidence that the applicant's work experience during the past twelve months did require, and the applicant's intended work in the United States will require, exceptional ability; and must submit documentation to show this exceptional ability, such as:

(i) Documentation attesting to the current widespread acclaim and international recognition accorded to the alien, and receipt of internationally recognized prizes or awards for excellence;

(ii) Published material by or about the applicant, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);

(iii) Documentary evidence of earnings commensurate with the claimed level of ability;

(iv) Playbills and star billings;

(v) Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the alien has appeared or is scheduled to appear; and/or

(vi) Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the applicant has performed during the past year in a leading or starring capacity.