EB-2 Employment-Based Second Preference with National Interest Waiver

(Exceptional ability or advanced degree professional with NIW) 

The EB-2 immigrant visa is one of the available pathways for entrepreneurs looking to live and work in the United States. This pathway is intended for: 

•  Professionals with advanced degrees.
• Individuals with exceptional abilities in sciences, business, or arts.  

This visa classification requires a job offer and a labor certification issued by the U.S. Department of Labor (DOL). You must first meet this requirement for your employer to move on to the next step of filling your immigrant visa petition with the USCIS and (if approved) before a beneficiary could be issued an immigrant visa through consular or adjustment processing.  

DOL regulations prohibit the issuance of labor certifications for self-employment. However, if you seek an EB-2 visa status with a National Interest Waiver (NIW), you may self-petition and not be subject to the labor requirement. When requesting a NIW, you must demonstrate that you are either an individual of exceptional ability or a member of the profession holding an advanced degree.  

More guidelines concerning the labor certification process are readily available on DOL’s website.  

Requirements for Advanced Degree Professionals  

There are generally two broad requirements for this category of EB-2 visa applicants. These requirements are: 

Requirement 1: You must show that you hold a U.S. advanced degree or equivalent foreign degree 

The term “advanced degree’ implies a professional or academic degree above a bachelor’s degree. Admissible evidence that you can use to demonstrate that you have an advanced degree may include the following: 

• Certified copies of the actual certificate, diploma, degree, or similar award 
• Copies of the official transcript
• An evaluation from an educational evaluation agency, if you obtained your degree outside the United States.
• Any other official documentation from the school’s Office of the Registrar
• If you have a U.S bachelor’s degree (or foreign equivalent), a letter from your current or prior employers indicating at least five years of progressively responsible experience in your field after receiving the degree 

For more information about how the USCIS determines eligibility for advanced degree professionals, check out the USCIS Policy Manual.  

Requirement 2: Your advanced degree must be related to the field in which you intend to work in  

Some of the supporting evidence you may submit to establish that your advanced degree is related to your field included, but is not limited to: 

• Documents describing your company and its work;
• A letter from you or your prospective employer describing your current or proposed job; and 
• A copy of your company’s annual report, if one is issued. 

Requirements for Individuals with Exceptional Ability  

There are generally two broad requirements for this category of EB-2 applicants. These requirements are: 

Requirement 1: You must demonstrate that you have exceptional ability in business, sciences, or arts 

To qualify for this classification, you must show exceptional ability in business sciences or arts. The initial evidence must include at least three of the six types of evidence listed below.  

You must answer yes and adduce supporting evidence for at least three of the following questions: 

1. Do you have at least ten years of full-time experience in your field? 
2. Have you received a certificate, diploma, degree, or similar award from a university, college, school, or other relevant institution relating to the field of exceptional ability?
3. Do you have certification or a license to practice in your occupation or profession if required? 
4. Are you a member of professional associations 
5. Have you or will you command a higher salary or other remuneration for your services, demonstrating your exceptional ability?
6. Have you been recognised for significant contributions to or achievements in the field? 

If the above criteria do not apply to your occupation, you may submit comparable evidence to establish your eligibility.  

Upon meeting the minimum threshold requirements, USCIS will evaluate all your submitted evidence in its totality to determine whether you have a degree of expertise significantly higher than that normally encountered in business, sciences, or arts.  

Refer to the USCIS Policy Manual for detailed guidance on how USCIS determines your eligibility for exceptional ability classification.  

Requirement 2: You must show that you will substantially benefit the U.S. welfare, U.S. economy, U.S. educational interests, or U.S. cultural interests prospectively.  

To show prospective benefit, you must submit evidence of a record of achievements and explain how that indicates your future success. Qualifying or admissible evidence that you can submit to make this demonstration includes, but is not limited to: 

• Published reports about your success; 
• Documents showing how your past accomplishments benefit the U.S. and specifying which element(s) (welfare, national economy, cultural, or educational interests of the United States) your entrepreneurial enterprise will benefit; 
• Letters from former or current employers documenting your prior work experience, including information about your accomplishments, their significance and how these accomplishments benefit the U.S.; 
• Copies of awards or special recognitions you may have received, with details about the criteria used to grant the recognition or award; 
• Letters from experts in your field regarding your accomplishments and their significance, including how your work will prospectively benefit the U.S.; and 
• Evidence of past achievements accompanied with explanations or documentation of how these accomplishments indicate continued or future success.  

National Interest Waiver (NIW) 

The USCIS reserves the right, as a matter of discretion, to grant your request for a National Interest Waiver IF the following requirements are met: 

1. You are well-positioned to advance the proposed endeavor.
2. Your proposed endeavor has both national importance and substantial merit.
3. On a balance, it would be beneficial to the U.S. to waive the requirements of a job offer and, subsequently, the labor certification requirements.  

The USCIS Policy Manual outlines detailed guidelines on how to evaluate eligibility for NIWs based on the requirements mentioned above. The policy also discusses the specific evidentiary considerations for entrepreneurs.  

The USCIS is not oblivious to the fact that entrepreneurs do not always follow traditional career paths and that start-ups vary in structure. Therefore, in addition to the general guidance, the USCIS Policy Manual clarifies that as an entrepreneur petitioner, you are free to submit other forms of evidence to help establish the following: 

•  That your endeavor has national importance and substantial merit; 
• That you are well-positioned to advance the endeavor; 
• That on a balance, it would be beneficial to the United States to waive the job offer requirement and, thus, the associated labor certification requirements.  

Sources  

The U.S. Citizenship and Immigration Service (USCIS) https://www.uscis.gov/working-in-the-united-states/entrepreneur-employment-pathways/immigrant-pathways-for-entrepreneur-employment-in-the-united-states