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Second Preference Employment Based Immigration - Aliens Of Exceptional Ability And Advanced Degree Professionals

by Gregory Siskind

The second preference category of employment-based immigration includes aliens of exceptional ability and aliens holding advanced degrees in professional fields.

How many of these visas are available annually?

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. There is no distinction in the allocation of visas between the two-second preference subcategories. As a general rule, a labor certification is required, although in some cases a national interest waiver is available.

Who is considered to be an Alien of Exceptional Ability?

The key to demonstrating exceptional ability is to show that the applicant possesses a level of expertise above that which would normally be encountered in the field.Exceptional ability is limited to aliens in the fields of arts, science and business. After some debate, it now seems clear that for purposes of this category, athletics are to be considered an art.

What evidence must be included in an EB-2 application?

In making the application, the USCIS requires at least three of the following six types of evidence:

  • For advance degree EB-2s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability,
  • For exceptional ability EB-2s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
  • A license to practice or certification if required in the occupation;
  • For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability;
  • For exceptional ability cases, evidence of membership in professional associations; and
  • For exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field.
  • Copy of an approved labor certification unless a national interest waiver is being sought.
Other comparable evidence may be submitted.

Who is considered an Advanced Degree Professional?

The USCIS defines a profession as an occupation in which a baccalaureate degree is the minimum requirement for entry.  An advanced degree is any academic or professional degree above the level of a bachelor’s degree.  The Immigration and Nationality Act allows for the substitution of five years progressive experience in the field to substitute for the advanced degree. 

What is a labor certification?

Labor certifications are documents that signify that the US Department of Labor has reviewed a position and determined that US workers with the minimum qualifications necessary to do the job are not immediately available. Employers need to go through an extensive recruiting process in order to get a labor certification and an EB-2 petition must include a copy of an approved labor certification. The labor certification process will be more fully addressed in a future article.

When will the labor certification requirement be waived?

A labor certification is not required if an applicant can demonstrate that granting the EB-2 petition is in the national interest. There are two kinds of national interest waiver applications available – the standard case and the physician NIW. Both are extremely complex topics and will be more fully discussed in a future article.


About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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