Updated: Oct 12, 2020
Much like the aphorism that “a rising tide lifts all boats”, the 1990 Immigration Act represented a bipartisan approach to immigration aimed at (among other things) encouraging highly talented persons to immigrate to the United States (read more: Unicorns, the American Dream, and the EB Visa Category).
In part 1 of this series, we discussed what it means to “self-sponsor” and how a person with extraordinary abilities can do so through the EB-1 visa category (read more: Self-Sponsored Green Card Visas for Persons of Extraordinary Ability, the EB-1). Similar to the EB-1, the EB-2 visa can provide a highly talented person with the ability to self-sponsor their petition to the United States, though the route requires what is called a National Interest Waiver.
To discuss this process, this article focuses on the general requirements of the EB-2 and how – under the right conditions – one can qualify for a National Interest Waiver.
At a broad level, a person must meet the visa qualifications based on one of two requirements related to either an advanced degree or “exceptional ability." (1)
At minimum, an advanced degree could be a bachelor’s degree (or a U.S. equivalent) along with proof of no less than 5 years of relevant experience within the discipline. An advanced degree could, however, represent a doctorate or above if it is a common entry requirement within the work area, as might customarily be the case for medical, academic, clinical, or research roles.
Exceptional Ability represents a level of expertise and accomplishment that substantially exceeds the norm within areas related to science, business, or arts. A person can demonstrate exceptional ability by meeting at least three of the following categories: academic background, 10+ years of experience, certifications or licensure, high salary, recognition by respected peers, membership within relevant organizations, or other forms of evidence. Often an Expert Opinion Letter from ProfVal will be used to provide an expert’s assessment of this information.
A person can achieve approval of their petition either through employer sponsorship, which would include a labor certification from the Department of Labor, or they can self-sponsor, which means that they are seeking to apply for the visa without a formal job offer. While the USCIS states that it is possible to self-sponsor with an advanced degree, the typical standard for self-sponsorship is exceptional ability.
To self-sponsor, an individual must thus demonstrate that they are a person of exceptional ability and that their proposed endeavor (typically expressed in a professional plan or a business plan) meets the criteria for being in the national interest of the United States. Based on this, they can apply to have the USCIS waive the requirement of a job offer, and thus the labor certification.
How does one argue for a National Interest Waiver (NIW)?
Precedent for a NIW argument comes from a legal case that attorneys may refer to as the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), or simply Dhanasar (2016). (2) In brief, the case broadened the “Secretary’s [of the USCIS] discretionary authority to grant a waiver when he “deems it to be in the national interest” of the United States of America. (3) The guidelines for this decision are summarized into three categories, which you can also find on the USCIS website (4):
The proposed endeavor has both substantial merit and national importance.
You are well positioned to advance the proposed endeavor.
It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
To get an idea of how NIW can be established, we provide examples of how experts working with ProfVal have demonstrated that it is in the national interest of the United States to grant an NIW for a few of the clients that we have worked with:
For a respiratory therapist, an expert established the professional’s expertise and explained how her expertise would contribute positively to both short-term and long-term health outcomes.
For an entrepreneur, one expert established the entrepreneur’s exceptional abilities background in his discipline with a general discussion of the importance of his endeavor. A second expert (a respected economist) explained in detail how the entrepreneur’s endeavor would produce positive economic impact related to the endeavor, employment within the region, and would lead to new skills within the U.S.
For a computer scientist, an expert explained the professional’s expertise in SAP along with the importance of the software in ensuring the success of major U.S. corporations
To summarize, an EB-2 relates to two potential sub-categories of skill areas. You can either petition through a job offer or self-petition. Those that self-petition must demonstrate that it is in the interest of the United States to waive the requirement of a job offer, and thus the labor certification.
Neither ProfVal nor this paper provides legal advice. If you would like us to suggest a lawyer to work with, ProfVal would be happy to refer you to an immigration attorney that we respect.
ProfVal, LLC (profval.com) is a purpose-driven, professor-founded, and ethically-grounded provider of Expert Opinion Letters that can be used to support employment-based visas (H-1B, L1, EB, O). ProfVal is dedicated to helping clients through services built based on an architecture of research. ProfVal is dedicated to helping our communities through our giving site, profval.org.
1. At ProfVal, we will not accept a client unless they state that they have met these requirements. 2. https://www.justice.gov/eoir/page/file/920996/download 3. https://www.justice.gov/eoir/page/file/920996/download 4. https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2