EB-2 Second Preference Category Immigrant Petition
The Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence for an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business.
Generally, the EB-2 category requires an offer of employment and an accompanying labor certification. 8 C.F.R. Section 204.5 (k)(4)(i).
However, the requirement of a job offer, and the labor certification, in this category may be waived for if exemption would be in the national interest. Section 204.5(k)(4)(ii). See also INA Section 203(b)(2)(B).
The permanent position offered by the Petitioner must require an advanced degree, and the Beneficiary must hold a directly related advanced degree or its foreign equivalent. Please note that a Bachelor’s degree or foreign equivalent plus five years of post-bachelor’s progressive work experience in the field meets this requirement.
The permanent position offered by the Petitioner must require exceptional ability in the sciences, arts, or business. Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Additional criteria must be met, including:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
National Interest Waiver
“National Interest” is not defined by statute or regulation. Instead in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the Administrative Appeals Office (AAO) issued a precedent decision for adjudicating national interest waiver petitions. Under the Dhanasar framework, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of evidence:
- that the foreign national’s proposed endeavor has both substantial merit and national importance;
- that the foreign national is well positioned to advance the proposed endeavor; and
- that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
The first step of the EB-2 immigrant petition (not including national interest waivers) is the PERM process. We refer you to our PERM page for those details.
Once the PERM is certified, the immigrant petition is filed.
For NIW cases, a PERM is not required; the immigrant petition is directly filed with the USCIS. We refer you to our EB-2 NIW page for additional details regarding this process.