Chapter 5 - Advanced Degree or Exceptional Ability

A. Advanced Degree Professionals

1. Eligibility

To qualify for this immigrant classification as a professional with an advanced degree, the following requirements must be met:

  • The beneficiary[1] must be a member of the professions[2] holding an advanced degree or foreign equivalent degree;

  • The position certified in the underlying permanent labor certification application or Schedule A application must require, at a minimum, a professional holding an advanced degree or the equivalent;[3] and

  • The beneficiary must have not only had the advanced degree or its equivalent on the date that the permanent labor certification application was filed, but also must have met all of the requirements needed for entry into the proffered position at that time.[4]

2. Foreign Equivalent Degrees

An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate.[5] A U.S. baccalaureate degree or a foreign equivalent degree followed by at least 5 years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the beneficiary must have a U.S. doctorate or a foreign equivalent degree.[6]

A beneficiary can satisfy the advanced degree requirement by holding either a:

  • U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or

  • U.S. bachelor’s degree, or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus 5 years of progressive, post-degree work experience.[7]

A beneficiary who does not possess at least a U.S. bachelor’s degree or a foreign equivalent degree is ineligible for this classification.

3. Advanced Degree Position

Mere possession of an advanced degree or its equivalent is not sufficient for establishing a beneficiary’s eligibility for this classification. The petitioner must also demonstrate that the position certified in the underlying permanent labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent. The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree.

Where the position requires multiple credentials combined with experience, the issue is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that the minimum requirements for the position in the permanent labor certification meet the definition of an advanced degree.[8]

This requirement has resulted in a particular problem involving petitions filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require advanced degrees. Specifically, the Occupational Information Network (O*Net)[9] indicates that, in nursing, only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (such as clinical nurse specialist, nurse practitioner) generally require advanced degrees. A registered nurse job, by contrast, usually does not require an advanced degree.

The long waiting periods often required for issuance of third preference employment-based immigrant visas for skilled workers, professionals, or other workers may cause a gap between the available supply of eligible nurses and the high demand for nursing services. Officers must verify the actual minimum requirements for the nursing position offered in the advanced degree petition. As stated, most nursing positions do not qualify for the advanced degree classification.

B. Exceptional Ability

1. Eligibility

A beneficiary[10] may qualify for the exceptional ability visa preference classification if:

  • He or she has exceptional ability in the sciences, arts, or business;

  • He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and

  • His or her services in one of those fields are sought by an employer in the United States.[11]

The term exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.[12] This standard is lower than the standard for extraordinary ability classification.[13]

2. Evidence

Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for exceptional ability classification.

Petition for Exceptional Ability Classification: Overview of Two-Step Evidentiary Review

Step 1

Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria").

Step 2

Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, considering the high level of expertise required for this immigrant classification.

Assess Whether Evidence Meets Any Regulatory Criteria

The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition is comprised of at least three of the six regulatory criteria.[14] The officer should apply a preponderance of the evidence standard when making this determination.

While officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, officers should not yet make a determination regarding whether or not the beneficiary qualifies for exceptional ability in this first step.

The initial evidence must include at least three of the following six types of evidence listed in the regulations:

  • An official academic record showing that the beneficiary 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 beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;

  • A license to practice the profession or certification for a particular profession or occupation;

  • Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);

  • Evidence of membership in professional associations; and

  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.[15]

In some cases, evidence relevant to one criterion may be relevant to other criteria.

Additionally, if these types of evidence do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.[16] This provides petitioners the opportunity to submit comparable evidence to establish the beneficiary's eligibility if the regulatory standards[17] do not readily apply to the beneficiary's occupation. When evaluating such comparable evidence, officers consider whether the criteria are readily applicable to the beneficiary's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in the regulation.

General assertions that any of the six objective criteria do not readily apply to the beneficiary's occupation are not acceptable. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. The petitioner should explain why the evidence it has submitted is comparable.[18]

Objectively meeting the regulatory criteria alone does not establish that the beneficiary in fact meets the requirements for exceptional ability classification.[19] For example, being a member of professional associations alone, regardless of the caliber, should satisfy one of the three required regulatory criteria. However, the beneficiary's membership should also be evaluated to determine whether it is indicative of the beneficiary having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. However, this secondary evaluation should be conducted as part of the final merits determination.

Final Merits Determination

Meeting the minimum requirement by providing at least three types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for exceptional ability classification.[20] Officers must also consider the quality of the evidence. In the second part of the analysis, officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination. The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

When requesting additional evidence or drafting a denial, if the officer determines that the petitioner has failed to demonstrate this requirement, he or she should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary qualifies for exceptional ability classification.

The petitioner must demonstrate that the beneficiary is above others in the field; qualifications possessed by most members of a given field cannot demonstrate a degree of expertise significantly above that ordinarily encountered. The mere possession of a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.[21]

Furthermore, formal recognition in the form of certificates and other documentation that are contemporaneous with the beneficiary's claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the beneficiary's achievements. As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[22]

3. Schedule A, Group II Permanent Labor Certification

Schedule A, Group II permanent labor certification for persons of "exceptional ability in the sciences or arts"[23] is distinct from classification as an person of "exceptional ability in the sciences, arts, professions, or business."[24] Under the U.S. Department of Labor (DOL)'s regulations, an employer seeking permanent labor certification on behalf of an person of "exceptional ability in the sciences or arts" may apply directly to USCIS for Schedule A, Group II permanent labor certification instead of applying to DOL for issuance of a permanent labor certification.[25]

C. Professional Athletes

1. Eligibility

The Immigration and Nationality Act (INA) defines professional athletes for the purpose of allowing them to retain the validity of the underlying permanent labor certification if they change employers.[26] These athletes may qualify for exceptional ability classification.[27] Specifically, the precedent decision Matter of Masters held that a professional golfer could, if he was otherwise eligible, qualify as for exceptional ability classification in the arts.[28]

This holding has been interpreted to apply to exceptional ability petitions filed on behalf of any athlete. However, the fact that the beneficiary has signed a contract to play for a major league team may not be sufficient to establish exceptional ability as a professional athlete.

Definition of Professional Athlete

For purposes of this classification, the term professional athlete means a person who is employed as an athlete by:

  • A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or

  • Any minor league team that is affiliated with such an association.[29]

Permanent Labor Certification Validity

A petition for classification of a professional athlete is supported by an underlying permanent labor certification filed on the beneficiary’s behalf, which remains valid even if the athlete changes employers, so long as the new employer is a team in the same sport as the team that filed the petition.[30]

Employers filing permanent labor certification applications on behalf of beneficiaries to be employed as professional athletes on professional sports teams file permanent labor certification applications under special procedures for professional athletes directly with the appropriate DOL processing center.[31]

2. Evidence

As is the case with all petitions for persons of exceptional ability, the petitioner must provide, as initial evidence, documentation demonstrating that the beneficiary qualifies exceptional ability classification, as specified in the regulations.[32] However, submission of evidence that meets the three required regulatory criteria does not necessarily establish that the beneficiary is qualified for the classification. An officer must assess the quality of such evidence, in addition to the quantity of the evidence presented, in determining whether the petitioner has met its burden in establishing that the beneficiary is qualified for the classification.

Similarly, an approved permanent labor certification submitted on behalf of a professional athlete does not prove that the beneficiary qualifies as an athlete of exceptional ability. Officers should look for evidence of exceptional ability beyond the mere existence of a contract with a major league team or an approved permanent labor certification.

An approved permanent labor certification submitted on behalf of the beneficiary does not bind USCIS to a determination that the person is of exceptional ability. Notwithstanding the grant of a permanent labor certification, the beneficiary may, for any number of reasons, be unable to fulfill the underlying purpose of the petition.

Many athletes, for example, enjoy substantial signing bonuses, but may not, thereafter, prove to be of “major league,” let alone exceptional caliber. Similarly, the fact that a beneficiary played for a portion of a season for a major league team does not automatically establish that the beneficiary will continue to play at an exceptional ability level. It would be inappropriate to approve an immigrant visa petition on behalf of a major league player on the basis of exceptional ability if the beneficiary is unlikely to continue to perform the duties specified in the underlying petition for a reasonable period following approval of lawful permanent resident status.

Additionally, the beneficiary could be cut from the major league roster, may announce his permanent retirement as a player in the sport, or suffer from a career-ending injury prior to adjudication of the petition, thereby removing the job offer that formed the basis of the petition, which would result in a denial of the petition.

D. National Interest Waiver of Job Offer

Since 1990, the INA has provided that a person of exceptional ability may obtain a waiver of job offer if such waiver is deemed by the agency to be in the national interest.[33] A subsequent technical amendment extended the job offer waiver to certain professionals. This waiver provision applies only to professionals holding advanced degrees and those persons with exceptional ability. A waiver of a job offer also includes a waiver of the permanent labor certification requirement.[34] In support of the petition, however, the petitioner must submit two copies of the employee-specific portions of a permanent labor certification (without DOL approval).[35] The petitioner may submit either the Form ETA 750 or ETA Form 9089.

The INA requires that all petitions seeking to qualify a person as having exceptional ability show that his or her presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. It adds the additional requirement of national interest to those who seek the job offer waiver.[36] Neither Congress nor legacy Immigration and Naturalization Service defined the term "national interest" in either the INA or the regulations in order to leave the application of this test as flexible as possible.

However, a person seeking to meet the national interest standard must show significantly more than the future national benefit required of all persons seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that waiver of the job offer requirement is in the national interest. Each case is judged on its own merit.

USCIS may grant a national interest waiver if the petitioner demonstrates that:

  • The person’s proposed endeavor has both substantial merit and national importance;

  • The person is well positioned to advance the proposed endeavor; and

  • On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.[37]

When a petition is denied because eligibility for the NIW has not been established, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.

Footnotes


[^ 1] This section uses the term beneficiary to refer to the noncitizen; however, if the advanced degree professional also seeks a national interest waiver of the job offer, he or she can self-petition. See Section D, National Interest Waiver of Job Offer [6 USCIS-PM F.5(D)].

[^ 2] See 8 CFR 204.5(k)(2) (defining profession as one of the occupations listed in INA 101(a)(32), as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation).

[^ 3] See INA 203(b)(2)(A). See 8 CFR 204.5(k).

[^ 4] See 8 CFR 204.5(k)(4).

[^ 5] For additional information on medical degrees as advanced degrees, see Chapter 6, Physicians [6 USCIS-PM F.6]. For general information about evaluations of education credentials, see Part E, Employment-Based Immigration, Chapter 9, Evaluation of Education Credentials [6 USCIS-PM E.9].

[^ 6] See 8 CFR 204.5(k)(2).

[^ 7] The Joint Explanatory Statement of the Committee of Conference, made at the time Congress adopted the Immigration Act of 1990, stated that the equivalent of an advanced degree is a bachelor’s degree plus at least 5 years progressive experience in the professions. See 60 FR 29771 (PDF). USCIS has incorporated this standard with respect to establishing equivalency to a master’s degree. See 8 CFR 204.5(k)(3)(i)(B).

[^ 8] See 8 CFR 204.5(k)(2).

[^ 9] See the Occupational Information Network (O*Net) website, which is sponsored by U.S. Department of Labor (DOL)’s Employment and Training Administration, and developed by the National Center for O*NET Development.

[^ 10] This section uses “beneficiary” to refer to the noncitizen; however, if the person of exceptional ability also seeks a national interest waiver of the job offer, he or she can self-petition. See Section D, National Interest Waiver of the Job Offer [6 USCIS-PM F.5(D)].

[^ 11] See INA 203(b)(2)(A). See 8 CFR 204.5(k).

[^ 12] See 8 CFR 204.5(k)(2).

[^ 13] See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].

[^ 14] See 8 CFR 204.5(k)(3)(ii).

[^ 15] See 8 CFR 204.5(k)(3)(ii).

[^ 16] See 8 CFR 204.5(k)(3)(iii).

[^ 17] See 8 CFR 204.5(k)(3)(ii).

[^ 18] See 8 CFR 204.5(k)(3)(ii).

[^ 19] See INA 203(b)(2).

[^ 20] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true”). See Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to exceptional ability petitions. See Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14, PM-602-0005.1, issued December 22, 2010.

[^ 21] See INA 203(b)(2)(C).

[^ 22] See INA 204(b).

[^ 23] See 20 CFR 656.15(d).

[^ 24] See INA 203(b)(2).

[^ 25] See 20 CFR 656.15(d). See Part E, Employment-Based Immigration, Chapter 7, Schedule A Designation Petitions [6 USCIS-PM E.7].

[^ 26] See INA 212(a)(5)(A)(iii).

[^ 27] See INA 203(b)(2)(A).

[^ 28] See Matter of Masters (PDF), 13 I&N Dec. 125 (Dist. Dir. 1969).

[^ 29] See INA 212(a)(5)(A)(iii). See 20 CFR 656.40(f).

[^ 30] See INA 212(a)(5)(A)(iv).

[^ 31] See 73 FR 11954 (PDF). See DOL’s Foreign Labor Certification webpage.

[^ 32] See 8 CFR 204.5(k)(3)(ii)-(iii). See Section B, Exceptional Ability Classification, Subsection 2, Evidence [6 USCIS-PM F.5(B)(2)].

[^ 33] See INA 203(b)(2)(B)(i). See 8 CFR 204.5(k)(4)(ii).

[^ 34] See 8 CFR 204.5(k)(4)(ii).

[^ 35] See 8 CFR 204.5(k)(4)(ii).

[^ 36] See INA 203(b)(2).

[^ 37] See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

Current as of September 16, 2021