Aliens of Exceptional Ability

Eb2 green card for aliens of exceptional ability

If you have exceptional abilities in science, art or business and your work would be in the national interest of the United States, you may meet eb2 visa requirements as an alien of exceptional ability. As a person of exceptional ability you can petition for yourself without an employer or a job offer.

The first step in the eb2 visa process for an alien of exceptional ability is the filing of an immigration petition Form I-140 and National Interest Waiver with supporting evidence.

The purpose of the petition is to classify you as an alien of exceptional ability so that you can adjust status or apply for an immigrant visa when the petition priority date is current. Except for those beneficiaries who are chargeable to India and China, the eb2 visa priority date – visa bulletin – is current for beneficiaries of every other country. This means that an immigrant visa is immediately available to beneficiaries of an approved second preference (eb2) employment based petition, i.e. no waiting line.

The purpose of the national interest waiver is to show that you are exempted from the usual need for a job offer and Labor Certification.

eb2 visa requirements

Eb2 Visa Requirements for Aliens of Exceptional Ability

The regulations define exceptional ability as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” To show you are an alien of exceptional ability in the sciences, arts, or business, the I-140 petition must be accompanied by at least three of the following:

(A) 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 about the area of exceptional ability;

(B) 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;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary, or other pay for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Meeting at least three of these criteria is merely the first step in a two-step process. The adjudicating Immigration Service Officer must also make final merits determination about whether the evidence as a whole supports your claim to be an alien of exceptional ability.

Avoiding Labor Certification

Generally an alien seeking classification under the second preference employment based category must have a job offer and an approved labor certification (LC). The purpose of the labor certification process (PERM) is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected.

However, the USCIS may waive the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability if the waiver would be in the national interest. Proving that you are an alien of exceptional ability does not automatically entitle you to a national interest waiver (NIW) and you may need a job offer and labor certification in your case.

Eb2 NIW Criteria

Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N 215 (Acting AC 1998), legacy INS provided guidance as to the threshold criteria for a waiver. To get a national interest waiver: (1) the person must seek employment in an area of intrinsic merit; (2) the benefit will be national in scope; and (3)the national interest would be adversely affected if a labor certification were required. As a petitioner, you must prove that the benefit your unique skills would give substantially outweighs the inherent national interest in protecting U.S. workers through the LC process.
Contact us for more information

If you are a professional with an advanced degree or a person of extraordinary ability and have questions concerning eb2 visa requirements, please schedule a consultation to discuss the matter with Green Card attorney Gary David Goodin at Goodin Law P.A.. Our law office is located at 3440 E Russell Rd #207, Las Vegas, NV 89120. Call 702-423-2721 to schedule a consultation.