EB2 Employment Based 2nd Preference

EB-2 (Employment-Based 2nd Preference) Overview

EB-2 waivers provide benefits to non-residents who have been awarded advanced degrees in their respective professional fields or who possess outstanding abilities in business, sciences, or the arts.
This waiver category requires a job offer as well as a labor certification unless the requirement is waived by the USCIS due to “national interest”. Each year, approximately 40,000 EB-2 visas are approved plus those not used in first preference.

“Advanced Degree” Requirements

To establish that the non-resident has been awarded an advanced degree, the non-resident must provide an official academic record proving the following:

Advanced Degree: 

The non-resident has been awarded a U.S. advanced degree (degrees above a bachelors) or an equivalent foreign degree; OR
Baccalaureate Degree plus Five Years of Progressive Experience in the Specialty: The non-resident has received a U.S. baccalaureate degree or an equivalent foreign degree and has documenting letters from former or current employers stating that the non-resident has at least five years of post-baccalaureate, progressive experience in the discipline. The USCIS policy states that an employer’s minimum requirement of a bachelor’s degree along with five years of experience or a master’s degree must be proven by the preference petition’s labor certification. The USCIS will not accept the bachelor’s degree along with five years of experience as the equivalent of a master’s degree if the substitutes are not detailed in the labor certification.

Supplemental Statement: 

Adjudicators may request that the client provide a “plain-English explanation“ of the required experience if the documentation provided in the labor certification application is vague concerning the advanced degree requirements. A supplemental statement may be used to establish each one of the following elements:

Post-baccalaureate job experience is required by the employer;

The employer is requiring that the job applicants possess job experience that is progressive (meaning, job applicants are required by the employer to possess experience reflecting advancing levels of knowledge and responsibility in the field); and
The described job experience is required in order to effectively perform the duties of the position.
The supplemental statement should be an affidavit supplied from a person within the petitioning company who has significant knowledge concerning the minimum requirements for the position. The guidelines maintain that adjudicators may assume that the constant state of change in the field leads to progressive technical positions. Adjudicators may, however request additional evidence to prove that advanced experience is required in cases involving sophisticated positions.

“Exceptional Ability” Requirements

Non-residents with exceptional ability in business, science, or the arts comprise the other second employment-based preference group. Applicants within the exceptional ability group must display a level of expertise far above that which is ordinarily seen in the relevant field.
Certificate or Degree is insufficient: The USCIS guidelines dictate that a certificate, diploma, degree or similar award from a school, college, university, or other institution may be insufficient to prove exceptional ability. A required certificate or license is also insufficient to prove exceptional ability.

Evidence of Exceptional Ability: 

Exceptional ability in business, science, or the arts, must be proven by at least three of the following:

1. An official academic record documenting that the non-resident possesses a certificate, diploma, degree, or similar award from a school, university, college, or other institution connected to the area of exceptional ability.
2. Documenting letters from former or current employers proving that the non-resident has at minimum 10 years of full-time experience in the field.
3. Certification or license to practice within the occupation or profession.
4. Documentation proving salary or payment to the non-resident for services that demonstrate exceptional ability.
5. Documentation of a professional membership OR
6. Documentation from business or professional organizations, government agencies, or colleagues for recognition of noteworthy accomplishments or achievements.
7. The USCIS has declared that comparable evidence relative to the non-resident’s application will be considered if the non-resident cannot provide the documentation listed above. In order to qualify in the second employment-based preference, athletes may be referred to as non-residents with exceptional abilities in the arts.

Petition
According to the rules of the USCIS, the second employment-based preference petition must be accompanied by:
Documentation establishing exceptional ability from the above list.
A Department of Labor approved labor certification or documentation to prove that the non-resident qualifies for Schedule A (if the job offer requirement is waived, a labor certification is not required), and
Documentation proving the requested waiver of a job offer.
Healthcare workers
Certification Requirements: Certain healthcare workers pursuing EB-2 classification must meet specific certification requirements which are currently applicable only to speech-language pathologists, physician assistants, nurses, medical technicians and technologists, and occupational and physical therapists. If the non-resident was trained in the U.S. or abroad, the certification is still required. The majority of the referenced healthcare workers who are seeking an adjustment of status or an immigrant visa will be either EB-3 skilled/professional workers or EB-2 advanced-degree professionals.
A foreign medical degree: Several requirements must be met when filing the labor certification application in order for a foreign medical degree to qualify as the equivalent of a U.S. M.D. degree. The non-resident must prove that he or she:
Earned a foreign medical degree from a medical school that demands a U.S. bachelor’s degree equivalent from applicants as a requirement for admission.
Provides a foreign education degree evaluation which explains how the non-resident’s foreign medical degree is equivalent to a U.S. medical degree awarded from an accredited institution in the United States, or
Has earned a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or equivalent, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3.