EB-2 Workers

Advanced Degree Professionals
The INS regulations define ''profession'' as any of the occupations listed in the statutory definition plus ''any occupation for which a United States baccalaureate or its foreign equivalent is the minimum requirement for entry into the occupation.'' Those in the listed occupations are: ''architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.''

To qualify in the second EB preference as a member of the professions it is not enough to hold a bachelor's degree. The alien must have an advanced degree, which the Service takes to mean ''any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.'' As an equivalent to the master's degree, the alien may possess a U.S. or equivalent foreign baccalaureate degree followed by at least five years of progressive experience in the specialty.

Approval of an advanced degree EB-2 petition requires the petitioner to establish two key elements:

  • the position itself must require and advanced-degree professional; and
  • the alien has to have the advanced degree or its equivalent.

Each is a separate requirement. The job must require either (1) a master's degree or (2) a U.S. baccalaureate degree or foreign equivalent followed by five years of progressive experience in the specialty. The applicant who lacks the advanced degree must have the baccalaureate plus experience. If the profession requires a doctoral degree, the alien must have that degree. A degree must be documented by an official transcript from the institution that granted the degree. Experience must be proven through letters from current or former employer(s). A preference petition for a professional will be denied without evidence that the alien qualifies in the profession; the Service will not accept experience alone.

Exceptional Ability in the Sciences, Arts, or Business

The INS defines ''[e]xceptional ability in the sciences, arts, or business'' as ''a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.'' The regulations require submission of at least three of the following in support of the petition:

  • 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;
  • 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;
  • A license to practice the profession or certification for a particular profession or occupation;
  • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  • Evidence of membership in professional associations; or
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations.

The regulations, however, do not limit qualifying evidence to these seven categories. If the beneficiary's occupation does not conform to these standards, comparable evidence of eligibility may be submitted. On the other hand, the possession of a degree or similar educational award, license or certification to practice a particular profession is not by itself sufficient evidence of the exceptional ability required. Exceptional ability refers to persons who are particularly qualified in their callings, not simply to persons who have callings.

As with the professional with an advanced degree, the requirement is two-pronged. Not only must the alien have exceptional ability, but the job offer, unless waived, must also demonstrate that the job requires a person of exceptional ability.

Under the second preference, the alien's exceptional ability must be in the sciences, arts or business. These terms are defined neither in the INA nor in the INS regulations. The term ''art'' has been determined by the INS to include both the esthetic/fine arts and the mechanical/ industrial arts. Fine arts includes painting, sculpture, music, poetry, drawing, architecture, dancing, and dramatic art. Mechanical/industrial arts include weaving, painting, arithmetic, navigation, etc. Athletes of exceptional ability are also considered within the ''arts'' for purposes of the present second preference classification.

A regulation of the Department of Labor gives a somewhat different reading to ''science or art,'' a term it uses for purposes of its Schedule ''A,'' Group II, under which college teachers, scientists and nonperforming artists of exceptional ability are extended a blanket labor certification. In that regulation the term is defined as any field of knowledge or skill in which colleges and universities commonly offer a degree program, although the alien may qualify without such studies. INS is bound by the definition in considering whether to deem second or third EB preference applicants certified under Schedule A and exempt from individual labor certification.

The term ''business'' should be given a broad reading that covers virtually every aspect of commercial affairs. In the opinion of the INS general counsel, however, business does not include the practice of a profession.

Under the INA, the alien's exceptional ability must ''substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.'' The INS in practice generally acts on the assumption that aliens who effectively perform in the field of their exceptional (extraordinary) ability, necessarily supply the required benefit to the United States.

National Interest Waiver

The statute requires that the services of the second preference beneficiary ''be sought by an employer in the United States.'' But it also allows the job offer to be waived not only in the case of persons of exceptional ability but to professionals with an advanced degree as well.

The INS developed a non-exclusive test of national interest for aliens of exceptional ability in business, which lists seven factors. If any one of these or other relevant factors are satisfied, a requested waiver is arguably in the national interest:

  • improving the U.S. economy;
  • improving wages and working conditions of U.S. workers;
  • improving education and training programs for U.S. children and under-qualified workers;
  • improving health care;
  • providing more affordable housing for young and/or older, poorer U.S. residents;
  • improving the environment of the United States and making more productive use of natural resources; or
  • a request from an interested U.S. government agency.

Not only business expertise that helps the national economy, directly or indirectly, but medical, legal, or educational skills badly needed in a region or state qualify under the national-interest rubric. Aliens in the arts were able to make the cut; leaders in medical and other scientific research have had easy going. That the alien would be engaged in such matters of national interest as industrial development in fields where the United States is in keen international competition, or business development favorably affecting our balance of trade, also weigh heavily on the side of the waiver.

Waivers of the job-offer requirement have been denied to aliens who were unable to show that they as individuals would significantly benefit the United States through their employment to a greater degree than other qualified individuals. Where the alien's talent and training were deemed to potentially benefit the alien's employer, rather than the United States, the exemption was denied.

Designated as a precedent decision on August 7, 1998, Matter of New York State Dep't of Transportation(NYSDOT) sets out binding criteria for waiver of the job offer, pointing in the direction suggested by earlier INS statements and decisions, but perhaps more exacting. In evaluating the request for a waiver, these factors must be considered:

  • The alien must be seeking employment in an area of substantial intrinsic merit.
  • The proposed benefit must be national in scope. The INS suggested that the beneficiary's individual activity must have a significant national impact. The issue is whether local work has a national impact. Some local work, no matter how important where it is done, may be too attenuated in terms of national impact to warrant a waiver. On the other hand, the INS has issued a waiver to an artisan bread baker and baking instructor whose system of training filled a void in our educational system and who played a critical role in the cultural renaissance of artisan baking, a culinary art rich in European tradition.
  • The final test is specific to the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.

To prevail in obtaining the waiver, the petitioner must establish that the alien will serve the national interest to a substantially higher degree than would an available U.S. worker having the same minimum qualifications.

The newer decisions suggest that a national interest waiver is still possible, even for employment with a private company, but it has become even more important to obtain testimonials from independent experts at the highest level, ideally from government sources. The evidence should show that the applicant's activities will have a strong, positive impact on a significant interest of the United States at a national level. The likelihood of that impact should be demonstrated by what the applicant has already achieved, ideally along lines that show a talent for innovation. The standard that the Service exacts for the waiver is a showing significantly above that necessary to prove the substantial ''prospective national benefit'' normally required of all aliens seeking to qualify as ''exceptional,'' even for those who petition for second preference on the basis of an advanced degree.