© 2023

EB-2:
 

  • Advanced Degree – Foreign workers who have a degree beyond a U.S. bachelor’s degree, such as a Master’s or Doctorate, or its foreign equivalent: A bachelor’s degree and at least 5 years of work experience in the field. Workers in this category must be approved by the U.S. Department of Labor’s Foreign Labor Certification Process.

  • Exceptional Ability – Foreign workers who have a specialized degree and hold a significant competence in one of the following areas: art, business, or science. Workers in this category must also be approved by the U.S. Department of Labor’s Foreign Labor Certification Process.

  • National Interest Waiver – 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.

     

Other EB-2 Requirements:

Immigrants seeking an EB-2 green card under the Exceptional Ability or National Interest Waiver categories must additionally meet at least three of the following requirements:

  • Official academic record of a degree relating to the field of exceptional ability.

  • Documentation of at least 10 years of work experience in the field.

  • Professional license or certification

  • A salary that indicates the person has exceptional ability in the field.

  • Be a member of related professional associations.

  • Peer or government recognition of achievements in the field.

  • Any other comparable evidence of exceptional ability.

EB-2 National Interest Waiver
 

 In Dhanasar, the AAO vacated (i.e., rendered invalid) the NYSDOT decision, which had governed and controlled all EB-2/NIW adjudications for nearly two decades, and it established a new analytical framework for EB-2/NIW adjudications.  The new framework requires a successful applicant to prove:

 

        (1)     his/her proposed endeavor (A) has substantial merit and (B) has national importance;

 

        (2)     the applicant is well-positioned to advance the proposed endeavor; and

 

        (3)     on balance it would be beneficial to the United States to waive the requirements of a job offer and use of the labor certification process.  

 

        The new requirements of Dhanasar contrast with the old requirements of NYSDOT in multiple ways, the most significant of which are elimination of a requirement to show the U.S. national interest would be adversely affected if a labor certification process were to be required, and a change from needing to prove that the benefits of an applicant’s perspective work will be geographically national in scope, to needing to prove that the benefits will be of “national importance.”

 

           Dhanasar made clear that “substantial merit” and “national importance” can apply not only to endeavors in science, but also to business, entrepreneurialism, technology, culture, health or education.   Further, while “substantial merit” may be demonstrated through economic impact, that is not required, and substantial merit may be demonstrated in other ways too – such as by showing advances in basic science that may not have measurable economic impact.

 

        Legal terms of art, such as “substantial merit,” “national importance,” “well-positioned to advance,” and “on balance would be beneficial” have meanings beyond ordinarily definitions, and the types of documentary evidence that would produce a persuasive and successful application need to be custom-tailored to each applicant’s career and personal contributions.  Dhanasar still involves subjective determinations made by USCIS adjudicators, and so great care still must be used to assemble and present persuasive evidence.  Nonetheless, Dhanasar will make application in the EB-2/NIW visa category appropriate to many foreign nationals who previously would not have qualified under the old NYSDOT decision and it institutes a new and broader test for EB-2/NIW eligibility.