Employment-Based Second Preference and National Interest Waiver

The second preference category has two sub-categories (1) EB-2-A Aliens Holding Advanced Degree, and (2) EB-2B Alien with Exceptional Ability. Aliens have an advanced degree or with Exceptional Ability can apply their green card under this category.

EB-2A, Aliens with Advanced Degree

Under EB-2A category, the aliens must either be member of the professions holding advanced degree or its equivalent. Advanced degree means any U.S. academic or professional degree above the Bachelor degree or foreign equivalent (Master or Doctor Degree). If the alien only has a bachelor degree, but has at least 5 years of progressive professional experience, he can be treated as having the equivalent of a Master degree. If the alien only has many years of experience, bur without a bachelor’s degree, s/he is not qualified for second preference.

Labor Certification (LC).In the process of green card application, EB-2A aliens must have LC approved by the Department of Labor before they can file immigration petition with the immigration services.

EB-2B, Aliens with Exceptional Ability

Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, art, or business. To prove exceptional ability, at least 3 of the following must be provided:

  1. 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;
  2. Evidence in the form of letter from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  5. Evidence of membership in professional associations;
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

If the above standards are not applicable to the alien’s occupation, comparable evidence may be submitted.

National Interest Waiver (NIW) Application

Both EB-2A and EB-2B aliens can apply for NIW if they meet the above professional qualification, and the following NIW requirements.

To qualify for NIW, the alien must, in addition to meeting the above requirements, establish that (1) s/he seeks to work in an area of “substantial intrinsic merit”; (2) his/her work must have a benefit which “will be national in scope”; and (3) s/he must “serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualification.”

In demonstrating substantially benefiting the national interest, the following factors (but not only limited to them) can be considered

  1. Improving the U.S. economy;
  2. Improving wages and working conditions of U.S. workers;
  3. Improving education and training programs for U.S. children and under-qualified workers;
  4. Improving health care;
  5. Providing more affordable housing for young and/or older, poorer U.S. residents;
  6. Improving the environment of the United States and making more productive use of natural resources;
  7. A request from an interested U.S. Government agency.

Labor Certification (LC) In the process of green card application based on national interest waiver, the alien can avoid the LC application procedure (what NIW actually means is the waiver of LC requirement because of national interest to the U.S.) and file his immigration petition directly with the immigration services. Therefore, his green card application can be processed in a faster way. In addition, NIW will not need a U.S. employer as a sponsor for the alien. For those who are qualified for the NIW, but their employer is not willing to sponsor them, they can file the petition themselves without an employer.