What are the requirements for the EB-2 & EB-3 visas for individuals with extraordinary ability, advanced degrees and labor certifications?

Employment Second Preference (EB-2)
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business may qualify for the EB-2 classification. All EB-2 applicants must have a labor certification approved by the Department of Labor, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Applicants may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the applicant may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:

  1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession. To qualify for this category, the job offered by the prospective employer must require an advanced degree and the applicant must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). Documentation, such as an official academic record showing that the applicant has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the applicant has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the applicant has at least 5 years of progressive post-baccalaureate work experience in the specialty.

  2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

National Interest Waiver (NIW)
Applicants holding advanced degrees or possess exceptional ability may apply for immigrant visa through the second preference (EB-2) employment category, which generally requires a labor certification for this category. This requirement can be waived if the applicant can demonstrate that granting the EB-2 petition is in the national interest.

In order to file an NIW petition, the applicant must demonstrate that he is seeking work in an area of substantial intrinsic merit to the US; that the benefit from the applicant’s work will be national in scope; and that such national interest would be adversely affected if a Labor Certification were required for the applicant.

There are two types of national interest waiver (NIW) applications: the standard case and the physician NIW. In standard NIW cases, court decisions have established a list of factors that show the permanent resident's admission would be in the national interest:

  • Improve the U.S. economy;
  • Improve wages and working conditions for U.S. workers;
  • Improve educational and training programs for U.S. children and under-qualified workers;
  • Improve health care;
  • Provide more affordable housing for young, aged, or poor U.S. residents;
  • Improve the U.S. environment and lead to more productive use of the national resources; or
  • Request by an interested U.S. government agency.

Physician NIW
The Nursing Relief Act of 1999 establishes special rules for requests for a national interest waiver that are filed by or on behalf of physicians. To be eligible for a physician NIW, the foreign physician must:

  • Agree to work full-time for five years in areas known as Physician Scarcity Areas (PSAs) that have been designated by Heath and Human Services (HHS) as having a shortage of specialty-care health professionals. The three-year service periods for some J-1 waivers can count toward the five years of service required for the NIW.
  • Obtain a determination from a federal agency or a state department of health that has knowledge of the physician's qualifications, which states that the physician’s work is in the public interest.

Employment Third Preference (EB-3)
All EB-3 applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:

  1. Skilled workers are persons capable of performing a job requiring at least two years'' training or experience
  2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree
  3. Other workers are those persons capable of filling positions requiring less than two years'' training or experience

Labor Certification
A permanent labor certification issued by the Department of Labor (DOL) allows a US employer to hire a foreign worker to work permanently in the United States. In most of the employment based visa categories (EB-2 and EB-3), before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To improve the operations of the permanent labor certification program, DOL implemented a new re-engineered permanent labor certification program (PERM) effective March 28, 2005. Under the PERM process, recruitment is conducted prior to filing to test the market. Recruitment includes two Sunday print advertisements, and for certain occupations, further forms of recruitment such as job search websites, postings on company websites, employee referral programs, or local newspapers. A job order with the State Workforce Agency is also required. Upon completion of the recruitment, an Audit File is created that includes the evidence of recruitment as well as information on the company's existence, ability to pay, and the credentials of the foreign national. A PERM case can be submitted either electronically or through the mail.

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