EB-2 Advanced Degree / Exceptional Ability
Second Preference: Up to 40,000 visas a year (plus any visas left over from the first preference) may be issued to persons who are “members of the professions holding advanced degrees or aliens of exceptional ability” in their field.
Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability.
- An alien eligible for this category is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien’s behalf, may be the petitioner.
- The position sought must require an advanced degree and the person must possess the degree or its equivalent in education and work experience.
2. Labor Certification or Evidence that Alien Qualifies for Labor Market Information Pilot Program
- Applicant alien must have a job offer and labor certification, or by documentation establish that the alien qualifies for one of the shortage occupations in the Department of Labor’s Labor Market Information Pilot Program. However, the USCIS may waive the requirement of a job offer and thus labor certification if it is deemed in the national interest to do so.
As used in this section:
- Advanced Degree. An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
- Bachelor’s Degree Plus 5 Years of Experience—Is a B.A./B.S or foreign equivalent plus 5 years of progressive post-degree experience in the specialty equivalent to M.A.
- Exceptional Ability. Exceptional ability means a degree of expertise significantly above that ordinarily encountered.
Proof of exceptional ability may be demonstrated in any (3) following way:
a. Degree relating to area of exceptional ability;
b. Letter from current or former employer showing at least 10 years of experience;
c. License to practice profession;
d. Person has commanded a salary or remuneration demonstrating exceptional ability;
e. Membership in a professional association;
f. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
g. Other comparable evidence may be submitted if above categories are in applicable.
4. National Interest Waiver (NIW)
- The “national interest” exception must be significantly higher than that required to establish prospective national benefit for all persons seeking “exceptional” status.
- Threshold criteria for an NIW include: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required. Having an exceptional ability is not by itself sufficient to grant the waiver. The petitioner must prove that the benefit his unique skills would provide substantially outweighs the inherent national interest in protecting U.S. workers through the Labor Certification (LC) process.
- Where NIW was based on applicant’s work with an employer, a petition filed by the employer would no longer be valid if employer was out of business or no longer wished to hire applicant. However, where the waiver was based on the applicant’s contribution to an industry that could be utilized by another employer, it remains a valid waiver.
5. International Medical Graduates
- International medical graduates are precluded from entering the U.S. as an immigrant principally to perform services as a member of the medical profession.
- However, this group will not be found inadmissible if:
a. Applicant possesses a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) on the bases of passing parts I and II of the National Board of Medical Examiners Examination, or an equivalent, is competent in oral and written English, and the Clinical Skills Assessment (CSA) examination.
b. Be a doctor of national or international renown;
c. Graduated of accredited medical school in U.S.; or
d. Not entering U.S. to perform medical services.
e. NIW for physicians in medically underserved areas. To obtain the benefit of this law: (1) the physician must agree to work full-time in a health shortage area or for the VA; (2) a federal agency or state public health department has to determine that the work is in the public interest; and (3) the physician must work full-time for an aggregate of 5 years in authorized status before he or she is eligible for AOS or IV.
f. USCIS Acceptance of Adjustment Application—A physician who is the beneficiary of an approved I-140 with a NIW may firm (and the USCIS must accept) an AOS application even if he or she has not completed the 3- or 5-year medical service requirement. However, USCIS may not approve the AOS until the physician has fulfilled the 3- or 5-year requirement.
g. Labor Certification for Physicians. When an NIW is not possible, a physician ay seek residency through the labor certification process. To obtain a labor certification as a treating physician, the medical doctor must establish that she: (1) meets the advanced degree requirement for EB-2 and thus has the equivalent to a U.S. advanced degree and that the position requires an advanced degree; (2) had the minimum requirements of the permanent physician position on the date of filing the labor certification which includes licensure; and (3) has overcome the “unqualified physician” provision of the INA, which includes proof of passing the USMLE.
- Registered nurses may not be accepted if they file for a EB-2, instead of an EB-3. At times USCIS takes the position that the job nurses file for does not require an advanced degree.
7. Soviet Scientist
- Certain scientists and engineers from independent states of the former Soviet Union may petition under petition under EB-2.
- Applicants do not need to obtain a labor certificate or Nation Interest Waiver, if they “have expertise in nuclear, chemical, biological, or other high-technology field which is clearly applicable to the design, development or production of ballistic missiles, nuclear, biological, chemical or other high technology weapons of mass destruction” or are working on defense projects in the same area.