EB-2 EMPLOYMENT-BASED SECOND PREFERENCE
A Path to U.S. Permanent Residence for Professionals with Advanced Degrees, Individuals of Exceptional Ability, and Certain Applicants Seeking a National Interest Waiver
The EB-2 employment-based second preference immigrant classification provides a pathway to lawful permanent residence in the United States for certain professionals who hold advanced degrees or their equivalent, as well as individuals who can demonstrate exceptional ability in the sciences, arts, or business.
EB-2 is an immigrant classification. For individuals who meet the applicable requirements and successfully complete the permanent residence process, it may provide a pathway to becoming a lawful permanent resident of the United States and obtaining a Green Card.
One of the most important concepts to understand about EB-2 is that there are different ways an individual may qualify for the underlying EB-2 classification.
The two principal eligibility bases are:
EB-2 – Advanced Degree Professional
This category is intended for members of the professions who hold an advanced degree or its foreign equivalent, or who otherwise satisfy the applicable USCIS requirements for the equivalent of an advanced degree.
EB-2 – Exceptional Ability
This category is intended for individuals who can demonstrate exceptional ability in the sciences, arts, or business. USCIS defines exceptional ability as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
In addition to these underlying EB-2 eligibility categories, certain individuals may request a National Interest Waiver, commonly known as an NIW.
The National Interest Waiver is particularly important because, when the applicable requirements are satisfied, USCIS may waive the normal requirement of a job offer and therefore the labor certification requirement.
This means that some individuals pursuing EB-2 classification through a National Interest Waiver may file an immigrant petition on their own behalf without requiring a U.S. employer to serve as the petitioner.
However, EB-2 and NIW should not be treated as interchangeable terms.
A National Interest Waiver does not eliminate the underlying EB-2 eligibility requirement. An individual seeking an NIW must first qualify for EB-2 as either an advanced degree professional or an individual of exceptional ability and must also establish that the requirements for the National Interest Waiver are satisfied.
WHAT IS THE PURPOSE OF EB-2?
The EB-2 classification is part of the employment-based immigrant system and is designed for individuals whose education, professional qualifications, expertise, or abilities satisfy the standards established for the second employment-based preference category.
Depending on the particular EB-2 pathway, the process may involve a U.S. employer, a permanent job offer, and labor certification.
In other circumstances, an individual who qualifies for EB-2 may request that USCIS waive the job offer and labor certification requirements because granting the waiver would be in the national interest of the United States.
For this reason, understanding the distinction between a conventional employer-sponsored EB-2 case and an EB-2 National Interest Waiver case is essential.
EB-2 ADVANCED DEGREE PROFESSIONALS
One basis for EB-2 classification is qualification as a member of the professions holding an advanced degree or its equivalent.
An advanced degree is generally an academic or professional degree above the bachelor’s level, or a foreign equivalent degree.
USCIS also recognizes an alternative involving a U.S. bachelor’s degree, or foreign equivalent degree, followed by at least five years of progressive post-baccalaureate experience in the specialty when the applicable requirements are satisfied.
The concept of progressive experience is important.
Simply having worked for five years after receiving a bachelor’s degree should not automatically be interpreted as satisfying every EB-2 advanced degree case. The education, experience, occupation, offered position, and other applicable requirements must be evaluated together.
For an employer-sponsored EB-2 case, the position itself must also require the qualifying advanced degree or equivalent.
This distinction is important because EB-2 eligibility is not determined solely by the fact that an individual possesses a master’s degree, doctorate, or extensive professional experience.
The requirements of the particular immigration case must be considered as a whole.
EB-2 EXCEPTIONAL ABILITY
The second major basis for EB-2 classification is exceptional ability in the sciences, arts, or business.
Exceptional ability does not simply mean that an individual is competent or successful in a profession.
USCIS describes exceptional ability as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Applicants seeking EB-2 classification on this basis must establish eligibility through evidence that satisfies the applicable USCIS requirements.
The evidence may relate to areas such as education, professional experience, licenses or certifications, compensation, professional memberships, recognition for achievements and contributions, and other qualifying evidence depending on the individual’s circumstances.
Meeting the applicable evidentiary requirements is an important part of the analysis, but an EB-2 exceptional ability case should be evaluated according to the complete USCIS standard and the totality of the evidence presented.
WHAT IS THE EB-2 NATIONAL INTEREST WAIVER?
The National Interest Waiver, or NIW, is one of the most widely discussed pathways within the EB-2 framework.
Normally, employment-based immigration involving EB-2 may require a permanent job offer from a U.S. employer and an approved labor certification.
A National Interest Waiver allows an eligible EB-2 applicant to ask USCIS to waive the job offer requirement, and therefore the labor certification requirement, because the waiver would be in the national interest of the United States.
This can fundamentally change the structure of the immigration petition.
When an individual qualifies for EB-2 and also satisfies the requirements for a National Interest Waiver, the individual may self-petition by filing Form I-140, Immigrant Petition for Alien Workers, without requiring a U.S. employer to file the petition on the individual’s behalf.
The ability to self-petition is one of the most important characteristics of the EB-2 NIW pathway.
However, NIW should not be understood as an automatic Green Card option for anyone with an advanced degree, a successful career, a business idea, or professional experience.
The applicant must establish both the underlying EB-2 qualification and eligibility for the National Interest Waiver.
HOW DOES USCIS EVALUATE A NATIONAL INTEREST WAIVER?
USCIS applies a specific framework when evaluating whether a National Interest Waiver should be granted.
Generally, the applicant must establish:
- That the proposed endeavor has both substantial merit and national importance;
- That the applicant 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 therefore the labor certification.
These requirements make the proposed endeavor a central part of an NIW petition.
USCIS is not simply evaluating whether the applicant is educated, talented, experienced, or successful.
The analysis also examines what the individual proposes to do in the United States, the importance of that endeavor, whether the individual is positioned to advance it, and whether the circumstances support waiving the normal job offer and labor certification requirements.
WHAT IS A PROPOSED ENDEAVOR?
For an EB-2 NIW case, the proposed endeavor describes the work, activity, project, business, research, professional objective, or other undertaking that the individual intends to pursue in the United States.
The proposed endeavor can therefore be more specific than simply identifying an occupation.
For example, stating that an individual is an engineer, entrepreneur, researcher, physician, technology professional, or business executive identifies a profession or occupation, but an NIW analysis focuses more specifically on what that individual proposes to accomplish through their work in the United States.
The nature and potential prospective impact of the proposed endeavor are important parts of the National Interest Waiver analysis.
CAN ENTREPRENEURS QUALIFY FOR EB-2 NIW?
Entrepreneurs may potentially pursue a National Interest Waiver when they satisfy the underlying EB-2 requirements and the NIW requirements.
USCIS recognizes that entrepreneurs may present different types of evidence because entrepreneurial endeavors do not always fit traditional employer-employee structures.
However, merely owning a company, forming a U.S. business, investing money, creating a business plan, or describing anticipated economic activity does not automatically establish NIW eligibility.
The entrepreneur must still demonstrate qualification for EB-2 and establish the elements required for the National Interest Waiver.
Depending on the particular endeavor and circumstances, relevant evidence may involve the entrepreneur’s education, skills, experience, record of success, progress toward the endeavor, business development, investment, funding, revenue, job creation, innovation, market interest, contracts, partnerships, intellectual property, or other evidence relevant to the proposed endeavor and the applicant’s ability to advance it.
Every entrepreneurial NIW case is therefore fact-specific.
DOES EB-2 ALWAYS REQUIRE AN EMPLOYER?
No.
This is one of the most important distinctions within EB-2.
A conventional EB-2 petition generally involves a qualifying U.S. employer and, where required, the labor certification process.
An EB-2 National Interest Waiver petition is different.
If the applicant qualifies for EB-2 and USCIS grants the National Interest Waiver, the job offer and labor certification requirements are waived. An individual seeking an NIW may therefore self-petition.
This distinction makes it important to determine the appropriate EB-2 strategy before preparing the immigrant petition.
WHAT IS LABOR CERTIFICATION?
Many employment-based immigrant cases require labor certification before the employer can proceed with the immigrant petition.
In the EB-2 context, the labor certification requirement is generally associated with cases requiring a permanent U.S. job offer.
A National Interest Waiver specifically asks USCIS to waive the job offer requirement and therefore the labor certification requirement.
This is why NIW cases follow a materially different petition structure from conventional employer-sponsored EB-2 cases.
FORM I-140 AND THE EB-2 PROCESS
Form I-140, Immigrant Petition for Alien Workers, is the immigrant petition used to request EB-2 classification.
Who files the I-140 depends on the type of EB-2 case.
In an employer-sponsored EB-2 case, the qualifying employer generally serves as the petitioner.
For a National Interest Waiver, an eligible individual may file Form I-140 on their own behalf.
Approval of Form I-140 establishes the approved immigrant petition, but I-140 approval should not be confused with the actual granting of lawful permanent residence.
Obtaining permanent residence involves additional eligibility requirements and procedural steps.
EB-2 AND THE GREEN CARD PROCESS
EB-2 is an immigrant classification and can provide a pathway to lawful permanent residence.
However, approval of an EB-2 I-140 petition does not by itself mean that the applicant immediately becomes a permanent resident.
The immigrant petition and the application for permanent residence are distinct components of the overall immigration process.
The steps available to an applicant depend on the individual’s circumstances, eligibility, and applicable immigrant visa availability.
This distinction is important when evaluating the overall timeline and strategy of an EB-2 case.
WHO SHOULD CONSIDER EB-2?
EB-2 may be worth evaluating for individuals whose education, professional background, expertise, and proposed activities potentially correspond to the USCIS requirements for the classification.
Depending on the circumstances, this may include:
- Professionals holding qualifying advanced degrees;
- Professionals with a bachelor’s degree and qualifying progressive post-baccalaureate experience;
- Individuals with exceptional ability in the sciences;
- Individuals with exceptional ability in the arts;
- Individuals with exceptional ability in business;
- Researchers and scientists;
- Engineers and technology professionals;
- Medical and healthcare professionals;
- Entrepreneurs and business professionals;
- Professionals whose proposed work may have broader prospective impact in the United States; and
- Other individuals whose qualifications and proposed endeavors satisfy the applicable EB-2 and, where relevant, NIW requirements.
Being included within one of these professional groups does not establish eligibility by itself.
Every EB-2 petition must be evaluated according to the applicable USCIS requirements and the evidence available in the individual case.
EB-2 IS AN EVIDENCE-DRIVEN IMMIGRATION PROCESS
Like other employment-based immigrant classifications, EB-2 depends heavily on documentation.
The evidence required varies according to the particular pathway.
An advanced degree case may require documentation relating to academic credentials, professional experience, and the requirements of the position.
An exceptional ability case may require evidence demonstrating the individual’s level of expertise and professional recognition.
An NIW case adds another layer of analysis because the applicant must establish the proposed endeavor, its substantial merit and national importance, the applicant’s position to advance the endeavor, and why waiving the job offer and labor certification requirements would, on balance, benefit the United States.
For this reason, two applicants with similar degrees or professional titles may have substantially different EB-2 cases.
UNDERSTANDING YOUR EB-2 PATH
The starting point for an EB-2 evaluation is not simply asking:
“Do I have a master’s degree?”
or
“Can I apply for an NIW?”
A more complete analysis begins with several questions:
Do I qualify for the underlying EB-2 classification as an advanced degree professional or an individual of exceptional ability?
Would my case normally require a U.S. employer and job offer?
Could my circumstances support a request for a National Interest Waiver?
What is my proposed endeavor in the United States?
Does that endeavor have substantial merit and national importance?
Am I well positioned to advance that endeavor?
What objective evidence is available to support the petition?
Would I pursue an employer-sponsored EB-2 petition or potentially self-petition through an NIW?
The answers to these questions determine the structure of the EB-2 case.
The sections below examine the EB-2 classification in greater detail, including Advanced Degree Professionals, Exceptional Ability, National Interest Waivers, the NIW three-prong framework, proposed endeavors, entrepreneurial NIW cases, evidence, employer sponsorship, self-petitioning, Form I-140, and the pathway toward lawful permanent residence.