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Employment Based Immigration- Second Preference Category (EB-2) and National Interest Waiver (NIW)

What is the EB-2 Immigrant Visa Category?

Congress created the employment based- second preference visa category with the Immigration Act of 1990. This classification includes:
  1. Members of the professions holding advanced degrees or their equivalent; and
  2. Individuals who because of their 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 in the sciences, arts, professions, or business are sought by an employer in the United States.

Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?

No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term profession is defined by USCIS as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. For example, architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academics or seminaries.

Can an entrepreneur qualify as a member of a profession holding an advanced degree?

Yes, an entrepreneur can qualify if the following conditions are met:
  1. Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf;
  2. Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree;
  3. Underlying position requires at a minimum, a professional holding an advance degree or the equivalent;
  4. Petitioning employer has received an individual labor certification from the Department of Labor; and
  5. Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?

Yes, an entrepreneur can qualify if the following conditions are met:
  1. Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneurs behalf;
  2. Entrepreneur will be working in the field of sciences, arts, or business;
  3. Entrepreneur has exceptional ability in the field of sciences, arts, or business;
  4. Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.;
  5. Petitioning employer has received an individual labor certification from the Department of Labor; and
  6. Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Why is a labor certification required to qualify for an EB-2 Immigrant visa category?

The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classification are not displacing equally qualified U.S. workers.

How is exceptional ability defined under EB-2 Immigrant visa category?

USCIS defines exceptional ability as degree of expertise significantly above that ordinarily encountered in field of sciences, arts, or business.

Is there a National Interest Waiver (NIW) and if so how can an entrepreneur qualify for NIW?

Yes. NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify can obtain a waiver of the job offer requirement if it is in that national interest.

If an entrepreneur wants to file for a NIW, does he or she still need to have an advance degree or be an individual of exceptional ability?

Yes. The entrepreneur must demonstrate that he or she is a member of the profession holding an advanced degree or an individual of exceptional ability.

If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?

No. An entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for NIW. An entrepreneur may be able to file for him or herself and fill the role of both the petitioner and beneficiary. Secretary of the State of the Department of Homeland Security may, if he or she deems it to be of national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Is there a definition of “national Interest”?

The term national interest is not defined in the statue of the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). While this does not specifically address entrepreneurs, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for NIW under limited circumstances.

NYSDOT laid out a test for NIW applicants to qualify for a waiver of the job offer requirement. This test requires the Petitioner (whether the U.S. employer of the NIW Applicant) to establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum requirements.

Can family members of EB-2 visa holders be admitted to the United States?

An EB-2 visa holder’s spouse and children under the age of 18 may be admitted to the United States in E-21 and E-22 Immigrant Status.

Can the spouse apply for employment during the application process for permanent resident status?

Yes. During the process where you and your spouse are applying for permanent resident status, your spouse is eligible for an Employment Authorization Document (EAD). Once your spouse’s EAD is approved she may start working in the United States.


The information contained on this site is offered only for general informational and educational propose and does not constitute a legal advice or opinion. All efforts are being made to keep this information current, but it may not be guaranteed that it applies to your specific case, and should not be relied upon or acted without seeking the advice of qualified attorney.