EB-2 Category

The Employment-Based Second Preference Category

  • Professionals with Advanced Degrees or the “Equivalent”

  • Persons with “Exceptional Ability”

  • The National Interest Waiver

Immigration Solutions Group, PLLC (“ISG”) has a deep understanding of the EB-2 category serving professionals with advanced degrees and persons with exceptional ability. This category includes foreign nationals of exceptional ability in the sciences, arts or business; foreign nationals that are advanced degree professionals; and qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.   Additionally, this category includes the National Interest Waiver.

Profession with Advanced Degrees or the “Equivalent”

 An alien qualifies for the EB-2 Second Employment-Based preference category as a member of the professions holding an advanced degree if:

  • The position to be filled requires a member of the profession with an advanced degree or equivalent; and
  • The beneficiary has the credentials specifically required for the position.

Member of the professions include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as those working in any other occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

Advanced degree means an academic or professional degree beyond the baccalaureate.

Or the equivalent means the possession of a bachelor’s degree in the field, followed by at least five years of progressive experience in the specialty.

An alien qualifying for EB-2 must have a master’s degree, the foreign equivalent, or a bachelor’s degree plus five years of progressively responsible experience in the specialty. Correspondingly, the position on which an EB-2 petition is based must require an advanced degree or the equivalent. Specifically, labor certification supporting an I-140 for EB-2 classification must specify that the position requires either a master’s degree or bachelor’s degree (U.S. or foreign equivalent) followed by at least five years experience in the specialty. If “progressive” experience is not specified, it should be clear from the description of job requirements that a person would qualify for the position only if the post-baccalaureate experience was progressive. A request for evidence or a notice of intent to deny may be required to obtain evidence clarifying this issue. Note also that, although the Department of Labor (DOL) accepts a bachelor’s degree plus 3 years’ experience as equivalent to a master’s degree, this does not satisfy the EB-2 requirement.

Persons with Exceptional Ability

Unless the alien obtains a national interest waiver (see below), no alien qualifies as an EB-2 immigrant unless the intending U.S. employer obtains a labor certification first and the employer in the U.S. is seeking the alien’s service in the qualifying field of employment.

“Exceptional Ability” is defined as a level of expertise significantly above that ordinarily encountered.  

The “arts” includes athletics and entertainment.

Exceptional ability in the arts, sciences, or business, must be demonstrated by a minimum of of the following types of documentation relating to the field of exceptional ability: 

  1. Official academic record demonstrating that alien has earned degree(s);
  2. Statement(s) from employer(s) demonstrating at least ten years of full-time experience in the field;
  3. License or certification for professional practice;
  4. Salary or other remuneration for services commensurate with that of a professional;
  5. Membership in professional association(s);
  6. Recognition by peers or government/professional entities for achievements and contributions.

 

The National Interest Waiver

In order to obtain a national interest waiver, a petitioner must submit a Statement of Qualifications of Alien together with evidence to support the claim that such an exemption would be in the national interest.

The term national interest is not defined by statute or regulation and each case is judged on its own merit.  Under the decision in Matter of New York State Department of Transportation, 22 I & N Dec. 215 (AAO 1998), USCIS considers the following factors when evaluating a request for a national interest waiver:

  1. The proposed employment is in an area that has substantial inherent value;
  2. The proposed benefit to be provided by the applicant is national in scope; and
  3. The national benefit to be provided by the applicant outweighs the national interest in the labor certification process (i.e. testing the U.S. labor market to ensure that no U.S. worker is available to fill the position for which the applicant is to be hired).

 

Special rules were established by statute and regulations for certain physicians who are willing to work full-time for five (5) years in medically underserved areas or at VA facilities. The Secretary of Health and Human Services (HHS) currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.

The petition must meet all documentary requirements of the EB-2 category such as petition with national interest waiver request, evidence of advanced degree or exceptional ability. In addition, the following must be submitted:

  • Full-time employment contract, employment commitment letter from a VA facility, or if self-employed, sworn statement committing to full-time practices of clinical medicine and steps taken to establish such practice. Evidence that the service will be provided in a medically underserved area designated by the HHS or a VA facility.
  • Attestation from a Federal agency or state health department issued within six (6) months of the filing of the petition that the physician’s work is or will be in the national interest. Evidence that the physician meets the admissibility requirements of INA sec. 212(a)(5)(B) that requires graduates of an unaccredited medical school to have passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination) and is competent in oral and written English.
  • Evidence of USCIS-issued waiver if the physician has been a J-1 receiving medical training in the U.S.
  • Attestation from a Federal agency or state health department issued within six (6) months of the filing of the petition that the physician’s work is or will be in the national interest.
  • Evidence that the physician meets the admissibility requirements of INA sec. 212(a)(5)(B) that requires graduates of an unaccredited medical school to have passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination) and is competent in oral and written English.
  • Evidence of USCIS-issued waiver if the physician has been a J-1 receiving medical training in the U.S.