EB-2 GREEN CARD AND
NATIONAL INTEREST
WAIVER
A Visa for People with Exceptional
Ability or People with Advanced
Degrees
EB-2 GREEN CARD AND NATIONAL INTEREST WAIVER
A Visa for People with Exceptional
Ability or People with Advanced
Degrees
EB-2 GREEN CARD AND NATIONAL INTEREST WAIVER
A Visa for People with Exceptional
Ability or People with Advanced
Degrees
The EB-2 visa is the second preference employment-based category for immigrant visas. It is reserved for people with advanced degrees or people with exceptional ability. An advanced degree is considered to be a U.S. master’s degree or higher, or a foreign degree equivalent. Alternatively, an individual could qualify for an equivalent of an advanced degree by possessing a bachelor’s degree plus 5 years of progressively responsible experience in a professional occupation.
Most people who apply in the EB-2 category must have a certified labor certification.
However, some people may qualify for this category without a labor certification if they can prove they have an advanced degree or exceptional ability AND qualify for a National Interest Waiver (NIW). The NIW is available for physicians
serving 5 years in a medically underserved area or for individuals who work in an area of national importance. NIW requirements will be explained in more detail below.
What is Exceptional Ability?
- 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 professional license or certification to practice your 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.
Merely submitting evidence in three of these categories does not guarantee approval under the exceptional ability standard. You also must describe how this evidence shows that your degree of expertise is significantly above the ordinary. Expert letters as well as other types of evidence can (and should) be used. USCIS conducts a final merits determination to assess whether the applicant truly possesses a degree of expertise significantly above that ordinarily encountered in the field. It’s essential that the area of exceptional ability is directly related to the proposed endeavor. USCIS evaluates whether the skills, knowledge, or expertise in the area of exceptional ability align with the proposed work.
What is a National Interest Waiver (NIW)?
This category does not require a labor certification or a job offer from an employer. This is important for many people, because in certain situations, the person does not have an employer who is willing to hire them for a permanent position, or their position is one in which a labor certification would not work for them for several reasons. Examples of cases where an NIW would be needed include the following:
This category requires that the applicant show that they have an advanced degree or have exceptional ability AND that it is in the national interest of the U.S. to waive the labor certification process in their case. Once that requirement is met, the applicant then needs to show the following three prongs of the Matter of Dhanasar test in order for the application to be approved for an NIW:
- The proposed endeavor has substantial merit and national importance. This prong evaluates the value and significance of the work the applicant proposes to undertake. Substantial merit means the endeavor provides a meaningful benefit to society, which can be in fields such as science, technology, health, education, business, entrepreneurship, culture, or others. National importance refers to the potential impact of the work beyond the applicant’s immediate or local community. It need not be geographically national, but the outcome should have broader implications for the United States—such as advancing economic competitiveness, public health, national security, or scientific progress.
- The applicant is well positioned to advance the proposed endeavor. This prong focuses on the applicant’s qualifications and capacity to make meaningful progress in their proposed field. USCIS considers factors such as the applicant’s education, skills, record of success in related efforts, relevant experience, and plan for future work. Evidence may include prior publications, patents, media coverage, grants, endorsements from experts, or a history of contributions in the field.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification. USCIS weighs the benefit of waiving the job offer/labor certification requirement against the policy aim of protecting U.S. workers. The applicant must show that requiring a labor certification would hinder their contribution to the U.S. and that the benefits of allowing them to work without employer sponsorship outweigh any risk to the labor market.
It is very important to determine whether you qualify for the EB-2 category, as it can greatly impact when you are eligible to file for a green card. The difference between the EB-2 and EB-3 categories can be years of waiting. Further, if you are a post-doctoral fellow, in a non-tenured track position for a university or in a position where your employer is not willing to file a labor certification on your behalf, attorneys at Weinstock Immigration Lawyers can analyze your case in great detail to see if you qualify for NIW.
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