EMPLOYMENT BASED 2ND PREFERENCE PETITIONS:

**Please note this is only a summary designed to give you an over view of the Employment Based 2nd Preference program. The rules and regulations are extensive and complex and this summary does not encompass all of the rules regulating the program: Employment based 2nd preference petitions allow for three types of petitions: the exceptional ability applicant, the exceptional ability self-petitioner, and the applicant holding an advanced degree processing after approval of the standard labor certification application.EB-2 Exceptional Ability Applicant: Can avoid the labor certification application (PERM) in permanent residence processing through a U.S. employer because these petitions are deemed pre-certified by showing exceptional ability in the sciences, arts or business.


  •  Members of a profession who hold an advance degree (Master’s or higher) or a Bachelor’s degree + 5 years of progressively responsible post degree experience.
  • Must have a U.S. employer as a petitioner and a full-time job offer.
  • Exceptional ability is defined as a degree of expertise significantly above what is ordinarily encountered in the sciences, arts or business. Must show any 3 of the following:
  • Degree relation to area of exceptional ability;
  • Letter from current or former employers showing at least 10 years of experience;
  •  License to practice a profession;
  • Command a salary or remuneration demonstrating exceptional ability;
  • Membership in a professional association;
  • Recognition for achievements and significate contribution to the industry of field of expertise by peers, governmental entities, or professional or business organizations. Note: certificates, awards, publications, patents, mentions in the popular press, high salary, memberships that require nominations or selectivity, and serving as the judge of others have more weight than letters prepared for the petition. A Ph.D. researcher who can run his/her own projects and obtain grant money will be able to show recognition more easily than a master’s degree applicant. There are exceptions for those with master’s degrees who hold patents or can otherwise show recognition for significant contributions in their field;

     Other evidence of the above, if these categories do not apply.

  • The degree does not need to be in the same field as the exceptional ability, but must be at least related to the area of exceptional ability. 
  • Must show that the applicant will “substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S.” The petition must clearly identify which element of prospective benefit the applicant believes he will achieve. EB-2 National Interest Waiver: Can avoid both the labor certification application (PERM) in permanent residence processing AND is not required to have a job offer by a U.S. employer. Applicant is a self-petitioner.
  •  Must show that the applicant’s employment will be in the National Interest. Requires showing of significantly more than the prospective national benefit of the standard EB-2 exceptional ability applicant.
  • Substantial Intrinsic Merit: Must show seeking employment in an area of substantial intrinsic merit. Are the outcomes of the work to be performed likely to benefit the U.S. in a meaningful way?
  • National Impact: Must show the benefit will be national in scope and not limited to a certain region or local community.
  • Primary Purpose: The primary purpose of the applicant’s work must be to advance the national interest in the area of expertise.
  • National interest gained must be greater than the national interest of recruitment of U.S. Workers: Must show that the national interest would be adversely affected if a labor certification were required. Must show the applicant will benefit the U.S. to a substantially greater degree than then minimally qualified U.S. work who might compete for the applicant’s position in the job market. Ask yourself how your skills and expertise will benefit the U.S. more than a minimally qualified U.S. worker that would be located through the job recruitment process. 
  • Past Impact: Must show some level of past impact on the area of expertise and national interest. Job creation is an important aspect of showing past and then future impact.
  • National Interest EB-2 can be a good option for entrepreneurs and startup company owners.
  • Documenting the applicant’s past impact and future benefit to the U.S. national interest includes but is not limited to: Recognition for achievements and significate contribution to the industry of field of expertise by peers, governmental entities, or professional or business organizations. Note: evidence of job creation, certificates, awards, publications, patents, mentions in the popular press, high salary, memberships that require nominations or selectivity, and serving as the judge of others have more weight than letters prepared for the petition.
  • What academic credentials, if any, are required for full autonomy in the field of the national interest waiver petition? Example Researcher: A Ph.D. researcher who can run his/her own projects and obtain grant money will be able to show recognition more easily than a master’s degree applicant. There are exceptions for those with master’s degrees who hold patents or can otherwise show recognition for significant contributions in their field; other evidence of the above, if these categories do not apply.Standard EB-2 Application with labor Certification ( PERM): Can apply for 2nd preference which generally has less backlog in visa numbers after completing the standard labor certification at the Department of Labor showing there are no qualified U.S. workers for the position.
  • Members of a profession who hold an advance degree (Master’s or higher) or a Bachelor’s degree + 5 years of progressively responsible post degree experience.
  • Approved labor certification application (PERM) at the Department of Labor.
  • U.S. employer as a petitioner and a full-time job offer.
  • Must show the applicant intends to work in the position described in the labor certification (PERM) application full-time at the salary stated. 
  • Must show the petitioning employer can pay the required salary in the labor certification from the first day of labor certification (PERM) filing. **This is only an outline of the issues involved in the employment based 2nd preference petitions. This document does not address all of the issues or documents involved in a complex employment immigration case. Please feel free make an appointment to discuss further with us the options available to you in your specific case.