EB-2 Exceptional Ability Visa


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EB-2 Exceptional Ability Visa

The EB-2 second preference employment-based immigrant visa category has three subcategories:

Foreign nationals with advanced degrees

Foreign workers who have a degree beyond a U.S. bachelor’s degree, such as a Master’s or Doctorate, or they may qualify with a B.A. degree and at least 5 years of work experience in their field. Workers in this category must be approved by the U.S. Department of Labor’s Foreign Labor Certification Process (PERM).

  1. If the foreign national is relying on a B.A. plus five years’ experience, there are some restrictions. The worker must have met the minimum requirements before, not after, the employer files the labor certification application (PERM); and (in most cases), before having even been employed by the sponsoring company. The DOL does not ordinarily allow a foreign national to count experience gained with the sponsoring employer.
  2. Also critical is that if the foreign national is claiming to have a bachelor’s degree plus five years’ progressive experience, the five years’ experience was gained subsequent to obtaining the bachelor’s degree.

National Interest Waiver

This EB-2 category allows foreign workers seeking to have the Foreign Labor Certification Process waived because it is in the national interest of the United States to do so. Unlike the other EB-2 green card categories, these workers do not need an employer sponsor and my self-petition for an EB-2 visa.

While the U.S. Citizenship and Immigration Services (USCIS) has not established specific criteria for approving National Interest Waiver petitions, many USCIS examiners take the following general factors into consideration:

  1. Improving the U.S. economy;
  2. Improving wages and working conditions of U.S. workers;
  3. Developing education and training programs for U.S. children and under-qualified workers;
  4. Improving health care;
  5. Providing more affordable housing for young and/or older, poorer U.S. residents;
  6. A request from an interested U.S. government agency or improving international cultural understanding

Foreign nationals with exceptional ability in a particular field

Courts have held that since people of exceptional ability are valuable to the US economy, the term “sciences, arts, or business” is to be broadly construed. “Science or art” is defined by the US Department of Labor (DOL) as including any field for which college courses are instructed leading to a degree.

What type of evidence do I need to establish exceptional ability?

In order to prove exceptional ability satisfactorily to USCIS, regulations require that you present evidence with your petition establishing that you meet at least three of the following six criteria.

  1. Official academic record from a university, college, school, or other educational institution in connection with the area of exceptional ability showing a degree, diploma, certificate, or other award;
  2. Letter from your present or prior employer establishing that you have at least 10 years of full time experience in the occupation or profession that you are seeking;
  3. Professional certification or a license to practice in the particular occupation or profession;
  4. Evidence establishing that you have commanded a high salary, or other remuneration, that would demonstrate your exceptional ability;
  5. Proof of your membership in professional associations;
  6. Evidence that you have been recognized for your achievements and significant contributions in your field from governmental entities, your peers, or professional organizations.

What Happens If the EB-2 Exceptional Ability Visa Application Is Denied?

If your EB-2 exceptional ability visa is denied, it can be a setback for the alien worker and the sponsoring employer.

The primary reason for denial could be the lack of substantial evidence supporting the applicant’s exceptional ability. The evidence could be an official academic record showing an advanced degree or its foreign equivalent, membership in professional or business organizations, or letters from current or former employers with details on the individual’s exceptional contributions and expertise.

If the USCIS officer determines that the provided evidence, such as exceptional ability letters, doesn’t meet the set criteria or is not comparable to the required evidence, the application might be denied.

Another reason could be issues with the permanent labor certification process. The EB-2 category generally requires a permanent employment certification, also known as labor certification. If there are discrepancies or issues with the labor certification, such as not proving that there are no qualified U.S. workers for the position, the application could face denial.

Furthermore, even if an applicant demonstrates exceptional ability, the USCIS might not be convinced of the substantial merit and national importance of their work. This is especially crucial for those seeking a waiver of the job offer and labor certification requirement based on work of national importance.

If the application is denied, the petitioner has the option to appeal the decision. It’s essential to consult with an immigration attorney who can guide you through the appeal process, provide insights on the reasons for denial, and help gather additional or more compelling evidence.

In some cases, government entities might support the applicant’s claim of exceptional ability and its benefit to the U.S., which can be a significant advantage during the appeal.

The process can be complex and challenging to understand. Thus, it is essential to consult with an attorney who can help you through the process.

What is the Lawyer’s Role in the EB-2 Visa?

Our Austin Immigration lawyer will help you gather the required information and documentation for the EB-2 Visa. We then carefully prepare all documentation needed to obtain your EB-2 Visa approval. We will communicate with you and the United States Citizenship and Immigration Service (USCIS) while the application is being processed up until adjudication.

Contact our employment-based immigration attorneys today!


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