EB-2 Employment Based Category
- Any U.S. employer who intends to employ and alien who is
a member of the professions, and who holds an advanced degree
in his/her field, or who has exceptional ability in the sciences,
arts, or business, may file an I-140 Petition on his or her
behalf. A Labor Certification is
required under this classification except where the Director
of the INS Regional Service Center having jurisdiction over
the case determines that an exemption would be in the national
interest. If an alien claims such as exemption, he/she, or
any person may file the petition on his/her behalf.
An advanced degree is any U.S. academic or professional degree above that of baccalaureate, or a foreign equivalent degree. An alien may also qualify for classification under this category if he/she holds a baccalaureate degree, and additionally have five years of progressive experience in the profession. The documentation required to be submitted with the petition includes the official academic record of the alien showing that he/she has been awarded an advanced degree or the foreign equivalent, or an official academic record showing that the alien has baccalaureate degree or a foreign equivalent and letters from current or former employers documenting that he/she has least five years of progressive experience in the specialty.
U.S. employers may also file petitions on behalf of aliens who claim exceptional ability in the sciences, the arts, or business. Exceptional ability is defined by the INS as a degree of expertise significantly above that which ordinarily encountered in the sciences, arts, or business. To prove this level expertise, the petition must be accompanied by at least three of the following:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from college, university, school, or other institute of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) form current or former employers showing that the alien has least ten years of full-time experience in the occupation for which he/she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers. Governmental entities, or professional or business organizations.
- If the above standards do not readily apply to the alien's
specialty, the U.S. employer may submit comparable evidence
to establish that the alien is eligible for permanent residence
under this classification.
To qualify for the exemption from a firm job offer, the petitioner must submit Form ETA 750B, "Statement of Qualifications of Alien," in duplicate along with the I-140 Petition, and evidence to support that the exemption is in the national interest.
Within the Second Employment Based Preference Category (EB-2) is a sub category called the "National Interest Waiver." The difference between the main category and its sub-category is the JOB OFFER and LABOR CERTIFICATION requirement present in the main EB-2. These requirements may be WAIVED in the NATIONAL INTEREST if the petitioner can show that his skills will substantially benefit the U.S.
- NATIONAL INTEREST - There is no set definition of
the term National Interest. The INS instead applies the term
to each case on an individual case-by-case basis. The main
case, Matter of [name not provided], EAC 92-091-50126 (AAU
July 21, 1992), known as the "Mississippi Phosphate" case,
that has provided guidance on the issue was decided in 1992.
In that case the court set out the following factors as relevant
to granting a National Interest Waiver:
- improving the United States economy;
- improving wages and working conditions of U.S. workers;
- improving education and training programs for U.S. children and other qualified workers;
- improving health care;
- providing more affordable housing for young and/or older, poorer U.S. residents;
- improving the U.S. environment and making more productive use of natural resources; or
- involving a request from an interested government agency.
- PRIOR EXPERIENCE AND TRAINING IN THE FIELD - The
alien must have two years of full-time experience in the field;
- NATIONAL NEED FOR SERVICE - The request for waiver
may not be based purely on a local labor shortage;
- "PLAY A SIGNIFICANT ROLE" - The Petitioner
will work on an undertaking which will "substantially
benefit prospectively the United States;" and the Petitioner
will "play a significant role" in the undertaking.
- BETTER THAN U.S. WORKER - The Petitioner must show that he/she will "serve the national interest to a substantially greater degree based on the INS appraisal of his or her record of achievement than would an available U.S. worker having the same minimum qualifications."
- INTRISIC VALUE OF SERVICES - Petitioner must show
that the Petitioner seeks employment in an area of substantial
intrinsic merit to the U.S. The Petitioner must show that his/her
work will improve an area such as the economy, education, heath
care, housing, or the environment of the United States.
- NATIONAL IN SCOPE - It must be shown that the proposed
benefit will be national in scope.
- NATIONAL INTEREST - The petitioner must persuasively
demonstrate that the national interest would be adversely affected
if a labor certification were required for the alien.
- PAST ACCOMPLISHMENTS - The Petitioner must document a record of past accomplishments from which it can be concluded that he or she will serve the national interest to a greater extent than other persons with the same level of education, training and/or experience.