SECOND PREFERENCE (EB-2) IMMIGRANT VISA PETITION FOR AN INDIVIDUAL OF EXCEPTIONAL ABILITY SEEKING A NATIONAL INTEREST WAIVER:
The EB-2 classification includes: aliens who are “members of the professions holding advanced degrees or their equivalent” and aliens “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.” 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 alien possesses such a degree or the equivalent. The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-baccalaureate experience in the specialty.
Qualified alien physicians who will be practicing medicine in an area of the United States certified by the Department of Health and Human Services as underserved may also qualify for this classification.
To be successful in obtaining a Waiver of the Required Labor Certification under the category reserved for individuals of Exceptional Ability in the sciences, arts, or business, whose work is in the National Interest, an applicant must be:
1) A member of the professions holding an advanced degree;
2) Who has exceptional ability, or a degree of expertise significantly above that ordinarily encountered in the field.
3) Evidenced by:
- Exceptional achievements;
- In an area of substantial intrinsic value;
- Offering a benefit that is national in scope.
4) The beneficiary must establish that the benefit his/her unique skills would provide substantially outweighs the inherent national interest in protecting U.S. workers through the labor certification process and that a waiver of the labor certification is appropriate and justified.
A Thesis Statement is required. It must establish first that Beneficiary has a degree of expertise significantly above that ordinarily encountered in the field. Proof of significant achievement in an area of substantial intrinsic value offering a clear benefit that is national in scope is required.
There is a “national interest” requirement that must also be defined and satisfied in order to establish eligibility for a waiver of the labor certification requirement. The key factor to success is a strong statement as to why the national interest would be adversely affected if a labor certification were required. The “national interest” associated with the waiver of the labor certification must be significantly higher than that required to establish the prospective national benefit of the significant achievements the Beneficiary has accomplished.
USCIS will consider as examples of national interest/benefit the following:
- improving the U.S. economy;
- improving wages and working conditions for U.S. workers;
- improving education and programs for U.S. children and under qualified workers;
- improving healthcare;
- providing more affordable housing;
- improving the U.S. environment and making more productive use of natural resources;
- interested government agency request.
Specifically, the Beneficiary must prove that:
- s/he seeks employment in an area of substantial intrinsic merit;
- the benefit of his/her work will be national in scope; and
- the national interest would be adversely affected if a labor certification were required resulting in delayed processing of the application (4-5 years) under the PERM program and 2-3 additional years at USCIS;
- the beneficiary must also submit Form ETA 750B (new PERM Form 9089) with the petition.
In addition to the Thesis Statement, the Beneficiary must identify three (3) specific eligibility criteria that the Beneficiary has satisfied. Each must be described specifically; the relative importance in the field associated with satisfying the criteria must be explained. The submission must contain an explanation as to why the fact that the Beneficiary is able to satisfy each criterion establishes exceptional ability and how the Beneficiary’s work is of such significant importance that it is in the national interest of the U.S. to grant his/her permanent residence to allow him/her to continue that work.
The Beneficiary must submit evidence that confirms three (3) of the following:
1) Degree relating to area of exceptional ability;
2) Letter from current or former employer establishing at least ten (10) years experience in the field;
3) License to practice profession;
4) Evidence that the Beneficiary has commanded a salary or remuneration demonstrating exceptional ability (significantly above what is normal in the field);
5) Membership in professional associations;
6) Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.
“Comparable Evidence” may be submitted if these criteria aren’t readily applicable. Comparable evidence may include expert opinion letters.
The submission must include both a list of the criteria satisfied and an explanation containing the specific reasons why the fact that the Beneficiary has satisfied each criterion in fact demonstrates that s/he possesses a level of ability that is “exceptional” or significantly above that ordinarily encountered in the field.
The key to success is showing the beneficiary possesses ability that is significantly greater than that encountered in the field such that their talent has changed the technology which justifies the waiver of the labor certification.
A USCIS Form I-140 (Petition for Alien Worker) is required. All I-140 petitions must be filed at the USCIS Regional Service Center that has jurisdiction over the place where the individual will work. The petition packet must include the required documentary evidence and should follow the specific filing guidelines of the Service Center. No labor certification is needed these EB-2 petitions. An EB-2 National Interest Waiver applicant may petition for himself or herself. To apply for a national interest waiver, you must submit Department of Labor Form ETA -750B.