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Exceptional Immigrants - The EB-2 Visa and National Interest Waivers

Our last article was about the EB-1 Visa, which is set aside for "Aliens of Extraordinary Ability." We now look at the complicated world of EB-2 Visas and National Interest Waivers.

As an initial matter, the EB-2 visa is broken down into two categories: (1) persons with exceptional ability in the sciences, arts, or business; and (2) persons who are members of the professions holding advanced degrees or their equivalent. Visas in both categories count towards the 40,000 visa cap as well as any leftover from the EB-1 category. Currently, as of the March 2013 visa bulletin, there are waiting lists for immigrants from China and India.

Going back to the two EB-2 categories, a person with exceptional ability is defined as satisfaction of at least three of the following requirements:

  1. An official academic record showing 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. Letters documenting at least ten years of full-time experience in the occupation 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. Membership in professional associations;
  6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

An advanced degree professional is defined as someone who holds an advanced degree such as a Ph.D. or Masters, or must hold a baccalaureate degree and have five years of experience in his or her specialty.

The National Interest Waiver ("NIW") mentioned above is a waiver of the job offer requirement and the Labor Certification Application ("LCA") requirement. A job offer may be difficult to secure in time for filing and the LCA process can be tedious and time-intensive both for attorneys and for USCIS to process. Thus, a NIW is in the best interest of speed and efficiency and frequently accompanies EB-2 visa petitions. To satisfy the NIW requirements, one must demonstrate three basic requirements:

  1. He or she is seeking work in an area of substantial intrinsic merit to the U.S. The applicant's work should benefit U.S. healthcare, economy, security or some other important aspect.
  2. The benefit from the candidate's proposed activity will be national in scope. It will benefit the entire U.S. population, and not just a particular area.
  3. The national interest would be adversely affected if a Labor Certification were required for the applicant. There would be negative consequences if the applicant's work were interrupted due to the lengthy Labor Certification process; or the applicant possesses exceptional qualifications which would not be reflected in the certification process and which U.S. workers minimally qualified for the same job would lack.

While the requirements appear challenging and onerous, they may not always be such. To demonstrate that the applicant's work benefits the US, we need not show a direct, immediate impact on a national scale. It is sufficient of the work will indirectly contribute to the benefit of the nation as a whole. For example, the work of a civil engineer engaged in the construction of a bridge benefits the national economy (even though the bridge is local), while the work of a teacher benefits the local community. Further, for NIW purposes, the field matters more than the individual's experience. As an example, it is generally easier to argue for a cancer researcher than an experienced web blogger even though both persons may be accomplished in their fields. .

The arguments and the processes involved can be complicated and require an experienced attorney to navigate. Contact our office if you have any questions regarding the EB-2 visa or any of your immigration issues.

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