EMPLOYMENT-BASED SECOND PREFERENCE

Posted by: Norka M. Schell, Esq.

EMPLOYMENT-BASE SECOND PREFERENCE IMMIGRANT VISA CATEGORY

Questions and Answers

1. What is the EB-2 Immigrant Visa Category?

A. Congress created the employment-based second preference visa category    with the Immigration Act of 1990. This classification includes:

Members of the professions holding advanced degrees or their equivalent,   and

Individuals who because of their exceptional ability in the sciences, art, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professionals, or business are sought by an employer in the United States.

2. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?

A. No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term "profession" is defined by as "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

3. Can an entrepreneur qualify as a member of a profession holding an advanced degree?

A. Yes. An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files an petition on the entrepreneur's behalf,
• Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree,
• Underlying position requires, at minimum, a professional holding an advanced degree or the equivalent,
• Petitioning employer has received an individual labor certification for the Department of Labor; or
• Entrepreneur meets all the specific job requirements listed on the individual labor certification.

4. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?

A. Yes. An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf,
• Entrepreneur will be working in the sciences, arts, or business,
• Entrepreneur has exceptional ability in the sciences, arts, or business,
• Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
• Petitioning employer has received an individual labor certification from the Department of Labor; or
• Entrepreneur meets all the specific job requirements listed on the individual labor certification.

5. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?

A. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.

6. How can an entrepreneur establish that he or she has exceptional ability in the science, arts, or business?

A. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(iii). The criteria are:

• (A) 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
• (B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
• (C) A license to practice the profession or certification for a particular profession or occupation
• (D) Evidence that the beneficiary has commanded a salary, or other remuneration of services, which demonstrates exceptional ability
• (E) Evidence of membership in professional associations, or 
• (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.  

It should be noted that, as set forth in sub paragraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree "relating to" the area of exceptional ability. This means that the entrepreneur's degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an Internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain area of business.

Second, the entrepreneur must demonstrate that he or she has meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business.

7. How does an entrepreneur show that he or she will substantial benefit prospectively the national economy, cultural or educational interest, or welfare of the United States?

A. The entrepreneur could demonstrate that at lease one aspect of the welfare of the United States will be "substantially" better off were the entrepreneurial enterprise to be located in the United States. It should noted that the term "welfare" as used by the statute is a broad concept and could refer to any number of areas.

8. Is there a "national interest waiver" (NIW)? And if so, what is it. Can an entrepreneur qualify for a NIW?

A. The National Interest Waiver (NIW) is a waiver of the job offer requirement for individuals who wish to immigrate to the United States in the second preference category who are members of the professions holding advanced degrees or individuals of exceptional ability in the arts, sciences or business. Entrepreneur, if they qualify can obtain a waiver of the job offer requirement if it is in the national interest.

9. Is there a definition of National Interest?

A. The term "National Interest" is not defined in the statute or the regulation, but a waiver request requires a showing "significantly above that for prospective national benefit. In a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).

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See www.uscis.gov