Second Preference EB-2 Category
Advanced Degree Professionals and
Workers with Exceptional Ability. INA § 203(b)(2); 8 C.F.R. § 204.5 (k).
There are two sub-categories under the EB-2 preference category: (1) Members of the professions holding advanced degrees; and (2) Foreign citizens possessing exceptional ability in the sciences, arts, or business.
1. Members Of The Professions Holding Advanced Degrees.
- Profession means one of the occupations listed in INA § 101(a)(32), as well as any occupation for which a U.S. bachelor’s degree or its foreign equivalent is the minimum requirement for entry into the occupation.
- Must possess a United States academic or professional degree or a foreign equivalent degree above that of a bachelor’s degree.
- An individual may also qualify under this category if he or she possesses a U.S. bachelor’s degree or a foreign equivalent degree along with at least five years of progressive experience in the specialty.
- If a doctoral degree is customarily required by the specialty, the foreign citizen must have a United States doctorate or a foreign equivalent degree.
2. Foreign Citizens Possessing Exceptional Ability In The Sciences, Arts, Or Business.
- Exceptional Ability in the Sciences, Arts, or Business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
- The foreign citizen’s work must substantially benefit the national economy, cultural or educational interests, or welfare of the United States.
- The possession of a degree, diploma, certificate, or license does not by itself warrant a finding of exceptional ability.
3. Job Offer Requirements and Labor Certification (PERM).
- Both a job offer and a labor certification (PERM) generally are required for the EB-2 category.
- Exception: Foreign citizens may qualify under the EB-2 category without an offer of employment, based on a National Interest Waiver. In this scenario, the foreign citizen may file an EB-2 petition on his or her own behalf. He or she would also be exempt from the labor certification requirement (PERM).
4. National Interest Waivers.
Three factors are considered when evaluating a request for a National Interest Waiver:
- The proposed employment must be in an area of substantial intrinsic merit;
- The proposed benefit must be national in scope; and
- It must be established that the proposed benefit considerably outweighs the national interest in protecting U.S. workers through the labor certification process. This third element can be satisfied if the foreign citizen would serve the national interest “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications.”
- Spouses and children under 21 may receive the same preference and priority date if accompanying or following to join.
Revised Feb. 4, 2008.