The EB-2 classification is divided into two sub-categories:
- professionals with advanced degrees and
- individuals with exceptional ability in the sciences, arts or business.
Although a job offer from an employer and a labor certification from the Department of Labor are generally required for the EB-2 classification, you may be eligible to self-petition if you are asking for a waiver of the labor certification requirement based on the national interest.
EB-2 Advanced Degree Professional
You may be eligible for this category if: (1) you are a professional holding a U.S. master’s degree or higher or foreign equivalent degree that relates to the field you will be working in; or (2) you have a U.S. Bachelor’s degree or foreign equivalent degree and at least 5 years of progressively responsible experience in your field after receiving your Bachelor’s degree.
EB-2 Exceptional Ability
You may be eligible for this category if you have exceptional ability in the sciences, arts, or business. Exceptional ability means that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.
One of the above EB-2 Petitions could be filed asking for a waiver of the labor certification requirement based on the national interest. With the petition we would need to provide evidence:
- that the beneficiary has an advanced degree or a Bachelor’s degree in addition to five years of progressive experience, or the beneficiary qualifies as an alien of exceptional ability.
- the foreign national’s proposed endeavor has both the:
- substantial merit; and
- national importance.
- The foreign national is well-positioned to advance the endeavor, and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
On December 27, 2016, in Matter of Dhanasar (26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office (AAO) of US Citizenship and Immigration Services (USCIS) clarified and revised the standard for granting a national interest waiver (NIW) of the PERM labor certification job offer requirement under the EB-2 immigrant visa classification. The AAO held that a foreign worker is eligible for a national interest waiver under Section 203(b)(2)(i) of the Immigration and Nationality Act (INA) if the foreign worker demonstrates above evidence.
The AAO specified that this new test should be judged under a preponderance of the evidence standard, requiring a showing that the foreign worker more likely than not satisfies the requirements.
The AAO’s decision vacates the existing standard from a 1998 case, Matter of New York State Dep’t of Transp. (NYSDOT). The AAO concluded that NYSDOT did not provide sufficient clarity and flexibility for USCIS in evaluating petitions filed by petitioning employers as well as by self-petitioning foreign workers.
