Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability
This employment based immigration route is outlined in the INA §203(b)(2) as codified in U.S.C § 153(b)(2. The applicable regulations can be found in 8 C.F.R 204.(5(k).
28.6% of the worldwide visas plus unused first preference visas are reserved for this preference category. As a general matter and given the more stringent educational requirements, this category is less backlogged and as such more preferable for qualified individuals. Under 8 C.F.R 204.5(e) the individual named in the I-140 petition as a prospective employee may retain the priority date of an earlier filed 1-140 petition which the mechanism that allows to mitigate long procedural waits and address the real life situations when the employee moves on to work for another employer in the same line of work.
There are also some individuals under EB-2 who may seek a waiver of the labor certification requirement if such waiver can be proved to serve the national interest of the United States. In other words, the law recognizes certain achievements of the alien and the demand of a given industry to expedite the legalization process in deserving circumstances. The burden is always on the applicant to prove that waiving the labor certification requirements would serve the national interest of the United States.
To qualify for the Second Employment Based Preference Category the individual must establish to the satisfaction of the fact finder that:
- S/he is members of the professions holding an advanced degree or the equivalent of advance degree; or
- S/he is one that because of his or her exceptional ability in the sciences arts or business will substantially benefit prospectively the national economy cultural or educational interests or welfare of the United States and
- Whose services are sought by an employer in the United States.
- Advance Degree or equivalent requirement — applies to the position offered by the employer not credentials of the the individual being hired. Usually a combination of an advance degree or its equivalent and work experience are required by the employers who seek to employ individuals
- 2. Applicant's Credentials must exist at the time the application is made. It means that the applicant must possess the advanced degree or its equivalent in education and work experience at the time of the application.