Employment Second Preference (EB2) – Professionals with Advanced Degrees or Persons With Exceptional Ability

This category includes:

  1. Advanced Degree Professionals – members of the professions holding advanced degrees or their equivalent
  2. Persons with exceptional ability in the sciences, arts or business Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Acquiring permanent residency in the EB2 category requires an employer who is willing to sponsor the foreign national. This requires the employer to initiate the labor certification process or PERM (Program Electronic Review Management) with the U.S. Department of Labor (DOL). This is done by filing Forms ETA 9141 (prevailing wage determination), and then ETA 9089 (Labor Certification).

Upon completion of the myriad requirements for obtaining a labor certification, the employer may sponsor the applicant for permanent residency by filing Form I-140 with USCIS.

Note, some foreign nationals with advanced degrees, like a Ph.D., may obtain their green card without first filing a labor certification through a process known as a national interest waiver.

Advanced Degree Professionals:

The job that the foreign national is applying for must require an advanced degree or its equivalent – such as the combination of a baccalaureate degree with 5 years of progressive post-baccalaureate work experience in the specialty.

Furthermore, the foreign national must also prove that he or she has a U.S. advanced degree or foreign equivalent. Work experience can be documented with the help of experience letters from the employer(s).

Exceptional Ability In The Sciences, Arts or Business:

This classification is for those “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.” According to USCIS, eligible foreign nationals must prove three of the following criteria in order to qualify:

  • An official academic record showing 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,
  • Letters documenting at least ten years of full-time experience in the occupation 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,
  • Membership in professional associations,
  • Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations,
  • Other comparable evidence of eligibility is also acceptable.

National Interest Waiver:

The National Interest Waiver (NIW) is for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.D., Ph.D etc.). This process allows the foreign national to seek a waiver of the labor certification process (job offer requirement) by proving that his or her permanent residency is in the national interest of the United States.

According to USCIS:
Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

The NIW is a good option for those who do not wish to wait several years for the labor certification process to clear with the DOL.

Note that the NIW process also applies to some qualified physicians. The Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95) amends section 203(b)(2) of the Immigration and nationality Act (INA) by establishing special rules for NIW requests filed on behalf of physicians. In order to qualify, the foreign physician must:

  1. Agree to work on a full-time basis in a clinical practice for the period fixed by statute. The required period of service is 5 years for most cases, and the beginning of the five-year threshold varies depending on whether the applicant previously secured a J waiver based on service in an underserved area.
  2. Work in one of the following specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.
  3. Serve in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs (VA) facility.
  4. Get a determination from a federal agency or the relevant state department of health with knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.