The second preference category of employment-based immigration includes two major subcategories: members of professions holding advanced degrees and aliens of exceptional ability. Also included in this category are physicians intending to practice medicine in underserved areas and Soviet scientists. Each year the second preference category is allotted about 40,000 visas, including any not used in the first preference. Generally, this is a sufficient number of visas and there is no backlog. As a general rule, a labor certification is required, although in some cases a national interest waiver is available.
Members of the Professions with Advanced Degrees
This subcategory includes members of the professions with an advanced degree (any degree above a baccalaureate degree) or, an individual with a baccalaureate degree and at least 5 years progressive experience in the professions. The combination of a baccalaureate degree and 5 years experience in the professions is deemed equivalent to a Master's degree. However, if a PhD is required for the particular profession, the alien must possess the doctoral degree (cannot use equivalent work experience).
Aliens of Exceptional Ability in the sciences, arts or business
This subcategory includes individuals who possess a level of expertise significantly above that ordinarily encountered in the sciences, arts or business. After some debate, it now seems clear that for purposes of this category, athletics are to be considered an art.
How can exceptional ability be demonstrated?
Proof of exceptional ability will include any three of the following:
- Degree relating to area of exceptional ability
- Letter from current or former employer/s showing at least 10 years experience
- License to practice profession if it is required
- Evidence that the individual has commanded a salary or remuneration demonstrating exceptional ability
- Membership in professional association/s
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.
If any of the above items are not applicable, submission of other comparable evidence will be allowed. Such evidence may include expert opinions letters.
Application Procedures in the EB-2 category:
A Form I-140 (Petition for Alien Worker) must be filed with the USCIS Regional Service Center that serves the area of intended employment. Before the Form I-140 can be filed with the USCIS in the EB-2 category, the alien must first obtain a labor certification from the U.S. Department of Labor. A labor certification is a test of the U.S. labor market to determine whether qualified U.S. workers are available and willing to fill the job in question. Please see the section entitled Labor Certification for more information.
In the EB-2 category, if you are a worker with exceptional ability in the sciences, arts, or business, a labor certification is not required if the alien can demonstrate that granting the petition is in the national interest and files a National Interest Waiver application (“NIW”). There are two kinds of NIW applications available: the standard case and the physician NIW. Please see the section entitled National Interest Waiver for more information.
Upon approval of a labor certification application, the alien may file the Form I-140 (also called the “Immigrant Visa Petition”) with USCIS. The Immigrant Visa Petition packet must be accompanied by evidence that the Petitioner has the ability to pay the proffered salary from the time the labor certification was filed until present and evidence that the alien meets the minimum requirements for the job opportunity.
Once the I-140 immigrant visa petition is approved, the alien and his/her spouse and children under 21 years of age may apply for their immigrant visas either through adjustment of status in the United States or through consular processing at a U.S. Consulate outside of the United States.
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