The EB-2 visa is a second-preference employment-based (EB) visa. Unlike other EB visas, this category also features a National Interest Waiver (NIW) option that allows applicants to self-petition without a job offer from a U.S. employer or labor certification. U.S. employers may file an EB-2 NIW petition on behalf of a beneficiary. Applicants for the EB-2 NIW meet both the EB-2 visa qualifications as well as meet the specific EB-2 NIW requirements.
EB-2 Challenges
Advanced Degree or Exceptional Ability
Foreign nationals must demonstrate that they either hold an advanced degree or that they possess exceptional ability. Advanced degree means a U.S. degree above the level of the baccalaureate. (Foreign degrees are allowed as long as they are established to be the equivalent of a U.S. degree). If the foreign national possesses only the equivalent of a baccalaureate degree, they may still qualify if they have five (5) years of progressive post-baccalaureate experience.
In the absence of any degree, the foreign national may still demonstrate that they have exceptional ability in the area of expertise that is significantly above that which would be ordinarily encountered in the foreign national’s profession.
Job Offer
Unless applying for a National Interest Waiver (see below), the foreign national must demonstrate that they have a specific job offer and the employer for the proposed position must apply for labor certification with the Department of Labor (DOL). Employers must petition on behalf of the foreign national in the EB-2 unless the foreign national files a National Interest Waiver.
EB-2 NIW Challenges
Substantial Merit and National Importance
Foreign nationals must demonstrate that their proposed endeavor to work and live in the United States has both “substantial merit” and “national importance.” “Substantial merit” means working in a field that is valuable to the national interest of the United States. “National importance” signifies that the proposed endeavor will have a nation-wide, rather than a merely local or regional, impact.
Ability to Advance the Proposed Endeavor
Foreign nationals must also demonstrate that they are well positioned to advance their proposed endeavor in the United States. The USCIS considers multiple factors when evaluating this criterion including professional history, educational background, the plan describing the endeavor, and any progress made toward advancing the endeavor.
Showing That, On Balance, The National Interest Outweighs Need for Labor Certification or Job Offer
Lastly, foreign nationals must demonstrate that, on balance, it would be beneficial to the U.S. to waive the requirements of a job offer, and thus of labor certification. The USCIS evaluates several factors such as the practicality securing a job offer depending on the petitioner’s qualifications; whether the U.S. would still benefit from the foreign national’s endeavor if qualified U.S. workers were available, and whether the national interest in the proposed endeavor is sufficiently urgent to warrant forgoing the labor certification process.