EMPLOYMENT-BASED SECOND PREFERENCE (EB-2)

The EB-2 visa category consists of foreign nationals who are "members of the professions holding advanced degrees or their equivalent" and foreign nationals "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economic, cultural, or educational interests or welfare of the United States."  Individuals of exceptional ability must have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Specifically, a petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (beyond the baccalaureate) and the foreign national possesses such a degree or the equivalent. The petition must include documentation such as an official academic record showing that the foreign national has a U.S. advanced degree or a foreign equivalent degree or an official academic record showing that the foreign national has a U.S. baccalaureate degree or a foreign equivalent degree.  Letters from current or former employers showing that the foreign national has at least five years of progressive post-baccalaureate experience in the specialty are also required.  A baccalaureate degree plus five years of progressive experience in the field is considered the equivalent of a master’s degree.

National Interest Waiver

The national interest waiver can be used with foreign nationals in the second preference category who have advanced degrees or exceptional ability in the arts, sciences, or business.  Neither the statute nor the regulations define national interest for this waiver application, but a waiver request requires a showing significantly above that for prospective national benefit.

The Administrative Appeals Office issued a precedent decision in Matter of New York State Department of Transportation (NYSDOT, Int. Dec. 3363 (Comm’r 1998)) establishing the following three-prong test:

• Applicant seeks employment in an area of substantial intrinsic merit;
• The proposed benefit is national in scope;
• The national interest would be adversely affected if a labor certification were required.

Under this test, the applicant for the national interest exemption must be able to provide a benefit so great that it outweighs the national interest inherent in the labor certification process.