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EB-2 Visa Immigration Services
The Employment-based Second Preference immigrant visa is for members of the professions holding advanced degrees OR for aliens of exceptional ability.
Members of the Professions Holding Advanced Degrees
To qualify for the EB-2, Professional with Advanced Degree, the applicant must demonstrate the following:
Beneficiary must be a member of the professions holding an advanced degree or foreign equivalent degree.
The position certified in the accompanying Labor Certification must be one that normally requires, at a minimum, a professional holding such an advanced degree or its equivalent.
The beneficiary meet all eligibility requirements at the time the petition is submitted.
Aliens of Exceptional Ability
This alternate qualification for the EB-2 allows for aliens of exceptional ability, namely, “a degree of expertise significantly above that ordinarily encountered in the sciences, arts (to include athletes and entertainers), or business.” Here, a person may be possessed of a degree that only relates to the area of exceptional ability.
To prove exceptional ability, an applicant needs to establish at least three (3) of the following:
- A degree relating to the area of exceptional ability
- A letter from current or former employers showing at least 10 years of experience
- A license to practice a given profession
- The beneficiary has commanded a high salary or remuneration
- Membership in a professional association; or
- Peer recognition for achievements and significant contributions to the industry or field. Recognition may also be from government agencies or professional or business organizations.
EB-2 VISA FINAL MERIT DETERMINATION
In addition to satisfying at least three of the above 6 elements, a successful application for an EB-2 Visa must pass a subjective test of the adjudicating officer such that a determination is made that the petition “in its entirety” and “by a preponderance of the evidence” has established that the beneficiary’s degree of expertise is significantly above that ordinarily encountered in the field.
All EB-2 Visa applicants must also show that he or she will substantially benefit the national economy, cultural or educational interests or the welfare of the United States going forward.
Labor Certification and National Interest Waiver
The EB-2 visa category requires both a job offer (i.e., an employer) AND a Labor Certification. The Labor Certification and job offer may be waived upon a showing that it would be in the U.S. national interest to do so.
National Interest Waiver
The National Interest Waiver is only available for the EB-2 immigrant visa category. Once an applicant has qualified as a member of the professions holding an advanced degree OR an alien of exceptional ability, the threshold criteria for the NIW waiver must be addressed
The foreign national’s proposed endeavor has both substantial merit and national importance A variety of endeavors will qualify, such as business, entrepreneurialism, science, technology, culture, health or education. Research or pure science fields can qualify absent a clear economic benefit to the U.S. Analysis is not limited to geographic scope, as a project in one locale may have the potential to benefit the entire country.
He or she is well-positioned to advance the proposed endeavor. The adjudicator will take into consideration factors such as the applicant’s education, skills, knowledge and record of success, as well as any plans for future activities related to the proposal. Progress toward reaching a defined goal as well as commercial interest are also dispositive. The point here is to show that the applicant is well-positioned to proceed.
On balance, it would be beneficial to the U.S. to waive the job offer and Labor Certification requirements Here, the Service may consider such factors as whether it would be impractical for the foreign national to secure a job offer or to obtain a labor certification (in other words, do the alien’s skills and knowledge easily fit into a known position for labor certification purposes, or are they likely to attract a job offer? The Service will also consider whether and to what extent the country would benefit from the alien’s contributions even if there are qualified U.S. workers who could perform the proposed endeavor. Finally, the Service will examine whether urgency requires a waiver of the labor certification process.
This waiver is highly discretionary and also depends on a finding that the foreign national “otherwise merits a favorable exercise of discretion” under Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
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