Employment-Based Immigration: Second Preference EB-2

Alert: On March 20, 2020, U.S. Citizenship and Immigration Services announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus 2019 (COVID-19).

You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Below are the occupational categories and requirements:

Eligibility Criteria

Sub-Categories

Description

Evidence

Advanced Degree

The job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field). You must meet any other requirements specified on the labor certification as applicable.

Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

If a doctoral degree is customarily required, you must have a United States doctorate or foreign equivalent degree

Exceptional Ability

You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  You must meet any requirements specified on the labor certification as applicable.

You must meet at least three of the criteria below.*

National Interest Waiver

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. 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 (see above) and whose employment in the United States would greatly benefit the nation. Those seeking 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.

In addition to providing evidence of an advanced degree or exceptional ability (described in the boxes above), you must also meet  the 3 National Interest Waiver criteria below** in order to demonstrate that it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.  

* Criteria

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating 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 demonstrates 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
  • Other comparable evidence of eligibility is also acceptable.

** Criteria for National Interest Waiver

  • The proposed endeavor has both substantial merit and national importance.
  • You are well positioned to advance the proposed endeavor.
  • It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Note: Employment-based, second-preference petitions must usually be accompanied by an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089, however, you may request a waiver of this requirement for a National Interest Waiver case.

To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker, unless you are filing for a National Interest Waiver, in which case you can file a Form I-140, Petition for Alien Worker on your own behalf.  As part of the application process, your employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

For more information on filing fees, see “File My Application Online”.

Family of EB-2 Visa Holders

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

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