There are three types of immigration categories in the EB-2 classification. Advanced degree professionals and exceptional ability cases require a labor certification from the Department of Labor and an offer of employment but, National Interest Waiver cases typically do not.
The most common EB-2 category, for advanced degree professionals, requires that the foreign worker holds an advanced academic degree such as a Master's, PhD, Juris Doctor or an M.D. Individuals with a B.A. or B.S. may also apply under EB-2, given that their degree was followed by at least five years of progressive experience in the specialty.
While EB-1 is for those with extraordinary abilities, the EB-2 classification is for those with exceptional abilities. These are individuals whose skills are significantly above others in the sciences, arts, or business. Along with the advanced degree classification, the exceptional ability classification requires a labor certification and a valid job offer. Exceptional ability is shown by proving at least three of the following criteria:
- A degree, certificate, or similar award from a university, school or other institution of learning relating to the area of exceptional ability
- Letters from employers documenting at least 10 years of full-time experience in the field
- A license or certification to practice the profession
- Salary or remuneration demonstrating exceptional ability
- Membership in professional associations
- Recognition of achievement and significant contributions to the field by peers, governmental entities, or professional organizations
- Other comparable evidence if the above types do not apply to the person's occupation
Along with the general EB-2 eligibility, National Interest Waiver (NIW) applicants must also satisfy all three elements of the NIW test. The applicant must be well-positioned to advance their proposed work, the proposed work must have both merit and national importance, and it would be in the interest of the United States to grant the applicant a waiver of the normal employment and labor certification requirements.
National Interest Waiver (NIW)
One of the ways you may qualify for an EB-2, employment-based second preference immigrant visa, is to receive a National Interest Waiver. In general, the second preference immigrant visa process requires a job offer from a potential U.S. employer and the filing of an alien Labor Certification Application with the U.S. Department of Labor. Aliens seeking a National Interest Waiver are requesting that the need for a Labor Certification be waived because having the alien work permanently in the U.S. is in the country's national interest. If approved, the foreign worker could enter the U.S. without a job offer. Though the jobs that qualify for a National Interest Waiver are not defined by statute, National Interest Waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those granted a National Interest Waiver may self-petition (they do not need an employer to sponsor them) and may file their Labor Certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
You must meet 3 of the following criteria AND show that it is in the national interest that you work permanently in the United States. Criteria, of which you must meet 3:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning related to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrate your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Note: Other comparable evidence of eligibility is also acceptable.
The spouse and children (under the age of 18) of the EB-2 holder may be admitted into the U.S. in E-21 and E-22 immigrant status, and the principal applicant may petition for an Employment Authorization Document (EAD) for his/her spouse during the permanent residence status application process.
What constitutes the National Interest?
Again, there is no statue which defines what the term national interest constitutes, but court decisions have established a list of factors which show that a prospective permanent resident's admission would be in the national interest. The factors include:
- The alien's admission will improve the U.S. economy
- The alien's admission will improve wages and/or working conditions for U.S. workers
- The alien's admission will improve educational/training programs for U.S. children and under-qualified workers
- The alien's admission will improve health care
- The alien's admission will provide more affordable housing for young, aged, or poor U.S. residents
- The alien's admission will improve the U.S. environment and lead to more productive use of national resources
- The alien's admission is requested by an interested U.S. government agency