The Second Preference
The employment-based second preference includes both the “Advanced-Degree Worker” category, which requires permanent alien labor certification, and the “National Interest Waiver,” which does not. It may include certain occupations in “Schedule A, Group II.”
National Interest Waivers
This visa category is for either advanced degree professionals or persons of exceptional ability. The immigrant visa petition must describe a proposed endeavor that has substantial merit and is of national importance, and show that the foreign national is well-positioned to advance that endeavor, and show that, on balance, it would be beneficial to waive the requirements of labor certification and a full-time job offer. This category does not require evidence of personal renown or broad name recognition like the extraordinary ability or outstanding researcher categories, but it does require proof of the widespread impact of the individual’s work.
There is a different kind of National Interest Waiver for physicians who undertake and agree to complete a 5-year commitment to work as a full-time primary care provider at a healthcare facility in a federally-designated shortage area or medically under-served population.
The legal standard for “exceptional ability” in the immigration regulations is fairly low, requiring 2 out of 6 types of evidence, and applies only to those seeking exemption from labor certification via a National Interest Waiver. It should not be confused with a separate legal standard defined in the labor regulations for “exceptional ability” that applies to Schedule A, Group II, a different process that also bypasses labor certification: The labor standard for “exceptional ability” is quite high, requiring international distinction in the arts or sciences. Although the Schedule A, Group II process avoids a test of the U.S. labor market, it still requires a full-time job offer, a prevailing wage determination, a posted notice on the employer’s premises at the site of the offered job, and a waiting period before the petition can be filed.
Advanced Degree Professionals
This visa category is for people who have been offered a permanent, full-time job by a U.S. employer, where the job requires an advanced degree, such as a Master’s degree or Ph.D., and where the foreign worker has the required degree or its equivalent (for some jobs, this may include a requirement of a B.A. plus five years of progressively responsible post-baccalaureate work experience) at the time the employer files for labor certification. The employer must follow a prescribed set of recruitment efforts to determine if there are any qualified U.S. workers available to fill the offered position, and must then file an electronic application under the “PERM” alien labor certification process with the Department of Labor describing those efforts. If no qualified U.S. workers apply, and the application is certified, the employer may then file an immigrant visa petition on behalf of the foreign worker with U.S. Citizenship and Immigration Services.
If you have any questions about EB-2 visas, contact Karin Wolman today!