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 (master’s or PhD) or a Bachelor’s degree and a 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.
NOTE I : Merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education, etc. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
NOTE II : USCIS can examine the national importance of the specific endeavor proposed by considering its potential prospective impact. USCIS could focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor. The endeavor may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances, etc. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.
NOTE III : To determine whether he or she is well positioned to advance the proposed endeavor, USCIS considers factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. Forecasting feasibility or future success may present challenges to petitioners and USCIS, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. USCIS, therefore, requires petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.
NOTE IV : On the one hand, Congress clearly sought to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. On the other hand, by creating the national interest waiver, Congress recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. Congress entrusted the Secretary to balance these interests within the context of individual national interest waiver adjudications. Here, we will discuss how the petitioner’s contributions will benefit the U.S. and that the national interest is important and urgent to waive the requirement of the labor certification; why it is important for the U.S. to have the Petitioner work in the U.S. permanently soon; how it is impractical for the Petitioner to get a visa sponsorship from a U.S. employer; how the Petitioner’s work will benefit the field of endeavor and the U.S how the Petitioner’s work may potentially generate considerable revenue for the organization or institution; may lead to potential job creations in the U.S. and any other economic revitalization of the U.S.; and taken all these together how it is beneficial to the U.S. to waive the requirement of visa sponsorship from a U.S. employer.
NIW for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields
To attract and retain talents in STEM fields, USCIS has adopted a policy to streamline the NIW I-140 petitions for those in STEM field and it has made a suggestive evidentiary requirements which are more practical. USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.
To identify a critical and emerging technology field, USCIS considers governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists. Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners. The following critical and emerging technology areas are of particular importance to the national security of the United States:
• Advanced Computing
• Advanced Engineering Materials
• Advanced Gas Turbine Engine Technologies
• Advanced Manufacturing
• Advanced and Networked Sensing and Signature Management
• Advanced Nuclear Energy Technologies
• Artificial Intelligence
• Autonomous Systems and Robotics
• Communication and Networking Technologies
• Directed Energy
• Financial Technologies
• Human-Machine Interfaces
• Networked Sensors and Sensing
• Quantum Information Technologies
• Renewable Energy Generation and Storage
• Semiconductors and Microelectronics
• Space Technologies and Systems
Critical and Emerging Technology Subfields are here
NOTE I: Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance.
The person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor. USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong. Persons with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter.
USCIS may consider whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security as described in the proposed endeavor.
NOTE II: USCIS will examine whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available. USCIS may consider the following combination of facts contained in the record to be a strong positive factor:
- The person possesses an advanced STEM degree, particularly a Ph.D.;
- The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
- The person is well positioned to advance the proposed STEM endeavor of national importance.
The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported from interested U.S. government agencies
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.
National Interest Waiver for Physicians
- About NIW for Physicians and its procedural history
U.S. law has established a national interest waiver (NIW) of the Department of Labor (DOL)’s permanent labor certification process for certain physicians petitioning for advanced degree professional or exceptional ability classification.
USCIS grants a NIW of the job offer requirement, and therefore the permanent labor certification requirement, for any physician seeking advanced degree professional or exceptional ability classification:
- The physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
- A federal agency or a department of public health in any state has previously determined that the physician’s work in such an area or at such facility is in the public interest.
The physician may not receive LPR status until he or she has worked full time as a physician for an aggregate of 5 years in the shortage area, or 3 years in the shortage area if the physician petitioned for the NIW before November 1, 1998.
USCIS regulations allow filing of a physician NIW and an adjustment application without the physician first completing the 3 or 5 years of service in shortage areas. The regulations include provisions that:
- Require physicians who had an NIW denied prior to November 12, 1999, to complete the 5-year rather than the 3-year service requirement;
- Require NIW physicians to comply with reporting requirements, including submitting initial evidence within 120 days of the completion of the second year of service and additional evidence within 120 days of completing the fifth year of service to establish that they were still engaged in the area of medical practice that was the basis for approval of the NIW; and
- Limit NIW eligibility to physicians who practiced in a medical specialty that was within the scope of the shortage designation for the geographic area.
Schneider v. Chertoff
Plaintiffs in Schneider v. Chertoff challenged specific provisions of the agency’s physician NIW regulations and, in its decision issued on June 7, 2006, the Ninth Circuit found that three regulatory provisions were beyond the scope of the statutory language. The court held that:
- Medical practice completed before the approval of the employment-based petition (except medical practice as a J-1 nonimmigrant) counts toward the service requirement;
- NIW physicians who had immigrant visa petitions filed on their behalf before November 1, 1998, but were denied before November 12, 1999, need only fulfill the 3-year service requirement; and
- The regulatory period of 4 years (where 3 years of service is required) or 6 years (where 5 years of service is required) within which NIW physicians must complete the medical service requirement is not a permissible interpretation of the statute.
On the remaining two challenged provisions, the court held that USCIS has the authority to impose reporting requirements on NIW physicians to ensure compliance with the statute and declined to address the question related to whether medical specialists should be covered under the statute.
USCIS is not required to allow a physician with an approved NIW and pending adjustment application to continue receiving interim work and travel authorization for an unlimited period without some evidence that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval.
Therefore, while USCIS amended NIW procedures to meet the Schneider decision (for example, not impose a specific timeframe within which the required medical service must be performed), an officer may exercise discretion to deny employment authorization or an adjustment application if he or she believes that the physician is using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.
The basic eligibility requirements for the physician are:
- The petitioner has filed a petition under INA 203(b)(2), along with the physician NIW request;
- The physician agrees to work full time in a clinical practice providing primary or specialty care in an underserved area or at a U.S. Department of Veterans Affairs (VA) health care facility for an aggregate of 5 years (not counting any time in J-1 status, but including such time that may have preceded the petition filing); and
- A federal agency or a state department of public health, with jurisdiction over the medically underserved area, has determined that the physician’s work in the underserved area or the VA facility is in the public interest (and, to the extent that past work is presented, that it was in the public interest).
Primary or Specialty Care
Since 2000, USCIS has given state departments of health more flexibility to sponsor waivers for physicians willing to work in medically underserved areas. For instance, under the Conrad 30 Waiver program, state departments of health may sponsor waivers for J-1 specialist physicians who will provide services to medically underserved populations (MUP). The Conrad program is similar to the NIW program as they both have a medical service requirement under which the physician must work in a medically underserved area.
Based on the U.S. Department of Health and Human Services’ (HHS) criteria published in 2000, USCIS limited its definition of qualified physicians in designated shortage areas to those who practiced primary care medicine, including family or general medicine, pediatrics, general internal medicine, obstetrics and gynecology, and psychiatry.
As of January 23, 2007, USCIS began accepting NIW petitions on behalf of primary and specialty care physicians who agree to work full time in areas designated by the HHS as having a shortage of healthcare professionals (for example, health professional shortage area (HPSA), medically underserved area (MUA), MUP, and, at the time, physician scarcity areas (PSA)).
In addition, in 2016 the Administrative Appeals Office clarified that, regardless of whether the shortage designation is seemingly limited to primary care physicians, in addition to primary care and specialty care physicians, medical specialists who agree to practice in any area designated by HHS as having a shortage of health care professionals may be eligible for the physician NIW.
The Nursing Relief for Disadvantaged Areas Act of 1999 requires USCIS to recognize HHS designations of health professionals without limitation to primary care. Accordingly, USCIS recognizes NIW physicians in primary care and specialty care. A specialty physician is defined as other than a general practitioner, family practice practitioner, general internist, obstetrician, or gynecologist. Dentists, chiropractors, podiatrists, and optometrists do not qualify for the physician scarcity bonus as specialty physicians, and therefore, cannot qualify for the NIW.
A physician or employer must submit evidence showing that a geographic area is or was designated by HHS as having a shortage of health care professionals. The designation must be valid at the time the NIW employment began. If the area loses its HHS designation after the physician starts working, a physician can remain at the facility and the time worked after that point qualifies as NIW employment so long as the employment continues to satisfy all other NIW requirements.
Medically Underserved Areas
In designating areas of the country as “underserved,” the Secretary of Health and Human Services addresses the shortage of family or general medicine and sub-specialist physicians (designations include HPSA, MUP, and MUA). For work that preceded the filing of the petition, the area must have been a designated shortage area at the time the work commenced but need not have retained such designation. For shortage designations, see these sources:
- HHS Health Resources and Services Administration to determine if a geographic area is an MUA or MUP.
- HHS Centers for Medicare and Medicaid Services to determine if a geographic area is an HPSA.
Physicians serving at VA facilities are not bound by the HHS categories noted above. The VA may petition for physicians who specialize in various fields of medicine, and the location of the work need not be in an underserved area.
Time Limit to Complete the Required Medical Service
The physician has no set time limitation to complete the 3 or 5 years of aggregate service, which may include periods of service prior to the filing or approval of the petition. While there is no set time limitation, a NIW physician must submit interim evidence of compliance with the medical service requirement before USCIS approves the adjustment application.
While officers cannot revoke the approval of a petition or deny an adjustment application for a physician solely because the physician did not complete the 3- or 5-year service requirement within a certain timeframe, officers may deny an adjustment application as a matter of discretion if the physician appears to be using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.
Physicians seeking an NIW based on service in an underserved area or at a VA facility must submit the following supplemental documentation with the petition:
- Employment contract or employment commitment letter covering the required period of clinical medical practice, issued and dated within the 6 months immediately before the filing date of the petition; and
- Public interest letter from the federal agency or state department of public health attesting that the physician’s work is or will be in the public interest, issued and dated within the 6 months immediately before the filing date of the petition.
The physician must also submit evidence to demonstrate that he or she has met all other eligibility requirements for classification as a person with an advanced degree or exceptional ability, other than the permanent labor certification.
In particular, a physician needing a waiver of the J-1 foreign residency requirement must still obtain such a waiver under INA 212(e) and satisfy all the waiver conditions (including 3 years of service) before USCIS may approve the physician’s adjustment application.
The Immigration and Nationality Act (INA) requires physicians to meet specific admissibility requirements relating to passing professional medical examinations and English language competency.
The physician must provide evidence that he or she has passed parts I and II of the NBMEE or an equivalent examination as determined by the Secretary of Health and Human Services. The NBMEE, also known as the NBME, ceased to be administered in 1992. Now the United States Medical Licensing Examination (USMLE), which was first administered in 1992, is considered an equivalent examination.
In addition to having passed either the NBMEE, USMLE, or one of its equivalents, the physician is also required to provide evidence of competency in oral and written English. An Educational Commission for Foreign Medical Graduates (ECFMG) certification showing the physician has passed the English language proficiency test meets this requirement.
Physicians seeking a physician NIW must provide documentation to establish admissibility under INA 212(a)(5)(B) at the time of filing of the petition. In contrast, physicians filing petitions with a permanent labor certification must establish admissibility at the time of the filing of the permanent labor certification.
Requests to Practice in a Different Underserved Area
USCIS regulations allow a physician with an approved petition and a pending adjustment application to practice medicine in a different underserved area or a different VA facility. Physicians must follow certain procedures, including filing an amended petition, in order to request such a change of practice.
Note: EB-2 NIW are complex and may require a consultation with an experienced immigration lawyer who had the experience and deep understanding of the U.S. government’s policies, applicable legal rules and the legal development, and recent trends in the STEM and other industry. You are welcome to contact us at (+1) 202 600 7742, or email us at email@example.com if you will have any question on this topic. You can also reach us to learn about our legal services or complete the Form to request an Attorney Consultation.