This immigrant visa category applies
to professionals holding advanced degrees and aliens of exceptional ability. These two options do require
a labor certification and an employer. However, the National Interest Waiver also falls under this preference category
but this option does not require a labor certification or an employer.
MEMBERS
OF THE PROFESSION HOLDING AN ADVANCED DEGREE
This category requires an employer and a PERM labor certification from the US Department of Labor. This category applies only to those who have an advanced degree
(professional or academic degree) or to those who have a minimum of a bachelor’s degree
plus five (5) years of work-related experience. The bachelor’s degree plus five (5) years of work-related experience
is acceptable by the
The US Citizenship & Immigration Service defines an advanced
degree as a professional or academic degree, given by a US institution of higher learning, beyond that of a bachelor’s
degree. A foreign degree from an overseas institution may also be acceptable if the US Citizenship & Immigration
Service determines the foreign degree to be the equivalent to a US degree.
This
category requires an employer and a PERM labor certification from the US Department of Labor. The labor certification
must attest that the position offered requires the minimum of an advance degree or a bachelor’s degree plus five (5)
years of work-related experience.
ALIENS
OF EXCEPTIONAL ABILITY
Pursuant
to 8 C.F.R. section 204.5(k)(3), to show that you are a person of exceptional ability in the sciences, arts, or business,
your employer must submit a petition accompanied by at least three of the following supporting documentation:
An official academic record
showing that the alien 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;
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least
ten years of full-time experience in the occupation for which he or 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.
The US Citizenship & Immigration
Service will also consider comparable evidence to establish exceptional ability for this EB2 immigrant visa category.
Note that this category is a separate immigrant visa category than the alien of extraordinary ability
category even though many of the criteria are similar. Unlike the alien of extraordinary ability category, this “alien
of exceptional ability” category requires you to show that you have a job offer in your research/professional field.
The only exception to the labor certification is the “National Interest Waiver,” which is referenced below.
NATIONAL INTEREST WAIVER (NIW)
The threshold
requirement for a National Interest Waiver is a master’s degree or “exceptional ability”
in your field. Exceptional ability may be evidenced by at least three of the following ten forms of documentation:
Receipt of lesser nationally or internationally recognized
prizes or awards
Membership in associations
that require outstanding achievement
Published
material about you in professional or major trade publications or other media
Served
as a judge of the work of others (individually or on a panel)
Original
contributions of major significance in the field (scientific, scholarly, artistic, athletic, or business-related)
Authorship of Scholarly articles or publications in profession or major trade publications
or media
Display of work at Artistic exhibitions
or showcases
Performance of a Leading or
critical role for distinguished organizations
Receipt
of High salary or remuneration in relation to others in the field
Commercial
success in performing arts
The main requirement for a National
Interest Waiver is a three-part test set forth according to In re New York State Department of Transportation,
Interim Decision #3363, August 7, 1998. You must meet all three parts to qualify for National Interest Waiver:
What you do must be of “substantial intrinsic merit;”
The benefits of your work must be “national in scope” (as opposed to
being purely local); and
You must establish that your
past record of achievement demonstrates that you can benefit the national interest to a “substantially greater degree
than would an available US worker having the same minimum qualifications.”