There are 5 Employment Based immigrant visa preference categories that individuals may use to obtain lawful permanent residence (green card) in the United States. Frequently, individuals are sponsored for the Employment Based Second Preference category, referred to as “EB-2”.

Often, individuals qualify for the EB-2 category based on a U.S. advanced degree or its foreign equivalent (or a U.S. Bachelor’s degree or foreign equivalent and 5 years of progressive post-baccalaureate experience). Individuals who do not meet the advanced degree requirement are frequently sponsored for an EB-3 immigrant visa, which can mean longer wait times for a green card depending on country of birth. However, there is another option for an individual to qualify for EB-2 without an advanced degree if they meet the exceptional ability requirements. 

Qualifying for EB-2 Exceptional Ability

Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the science, arts, or business.” A beneficiary may qualify for EB-2 without an advanced degree by demonstrating that because of their exceptional ability in the sciences, arts, or business, they will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the U.S. An individual sponsored for EB-2 – exceptional ability is required to meet at least 3 of the following criteria:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

The U.S. Citizenship and Immigration Services (USCIS) will apply a 2 step test in its analysis of a beneficiary’s qualifications. The USCIS will first determine if the individual meets the criteria above, and will then analyze whether the submitted evidence is sufficient to demonstrate a degree of expertise significantly above that ordinarily encountered in the beneficiary’s particular field. Therefore, the Beneficiary should submit concrete evidence proving a level of expertise significantly greater than others in their field and discuss which element of prospective benefit will be achieved.

What are the Steps?

To be sponsored for EB-2 based on exceptional ability, the beneficiary will require a full-time permanent job offer and PERM labor certification, unless qualifying under the National Interest Waiver (NIW). The employer must have a legitimate need for this level of skill as well. After the labor certification is approved, the employer will file an I-140 Immigrant Petition with USCIS on behalf of the beneficiary, along with all qualifying documentation. If the beneficiary’s priority date is current, meaning a green card is immediately available to them, the I-485, Application to Register Permanent Residence or Adjust Status can be filed.

Conclusion

The EB-2 Exceptional Ability option can provide a path for individuals seeking EB-2 where they would not otherwise qualify under the advanced degree requirement. Careful analysis of your specific circumstances and qualifications is highly recommended in such cases. You should seek advice from a qualified immigration attorney to help determine if this is the best option for you.

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