Employment-Based Immigration: Second Preference EB-2

You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability.

Labor Certification

Second preference petitions are usually accompanied by a signed U.S. Department of Labor (DOL)-approved Form ETA-9089, Application for Permanent Employment Certification, or, for labor certification applications filed on or after June 1, 2023, using DOL’s Foreign Labor Application Gateway (FLAG) system, an approved and signed Form ETA-9089, Final Determination – Permanent Employment Certification Approval (Final Determination). For more information, see the Department of Labor’s Foreign Labor Certification webpage.

For certain occupations, referred to as Schedule A occupations, a DOL-approved labor certification is not required because DOL has already determined there are not sufficient U.S. workers for those occupations. Currently, DOL has designated 2 groups of occupations under Schedule A. Group I includes professional nurses and physical therapists. Group II includes beneficiaries with exceptional ability in the sciences or arts (including college and university teachers) and immigrants of exceptional ability in the performing arts. Immigrant petitions for these occupations must be accompanied by a completed, uncertified Form ETA-9089, including all applicable appendices, a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of the Form ETA-9089 (application for Schedule A designation).

In addition, for the second preference category, an immigrant petition may request a waiver of the job offer, and thus the labor certification requirement, because it is in the national interest of the United States. National interest waiver petitions must be accompanied by a completed Form ETA-9089, Appendix A and a signed Form ETA-9089, Final Determination.

* Criteria for Exceptional Ability (must meet at least 3)

• 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 from current or former employers 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.

There are exceptions to the labor certification requirement for second preference petitions:

For more information on filing fees, see the Filing Fees page.

Immigrant Petition Process

Second preference petitions are filed using Form I-140, Immigrant Petition for Alien Workers. A U.S. employer must file a Form I-140, Immigrant Petition for Alien Workers, on your behalf, except for petitions based on a national interest waiver, where you may file a Form I-140 on your own behalf. For information on required supporting documentation and filing fees, see the Form I-140 webpage (which includes the Form I-140 instructions and information about filing fees) and the Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Workers webpage.

Family of EB-2 Visa Holders

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.

National Interest Waiver Filing Tips

USCIS reviews the totality of the evidence when adjudicating national interest waiver requests. There is no single factor or piece of evidence that will establish eligibility. The filing tips below are designed to help petitioners prepare a case by discussing how USCIS analyzes these cases. The following sections address each eligibility issue in the order USCIS follows when adjudicating. A petition organized around the issues below and in that order should assist adjudicators to more easily identify relevant information and evidence pertaining to the various aspects of the adjudication.

For more guidance on these factors in general and how USCIS considers them for those pursuing endeavors in STEM and entrepreneurs, read our policy in section D of the USCIS Policy Manual, Volume 6, Part F, Chapter 5, Advanced Degree or Exceptional Ability.

A. Eligibility for EB-2

Eligibility as an Advanced Degree Professional

• Provide evidence of your U.S. degree above a bachelor’s (or foreign equivalent degree) or evidence of your U.S. bachelor's degree (or foreign equivalent degree) followed by 5 years of progressive experience in the specialty. Qualifying post-bachelor’s experience must all have occurred after you obtained your degree and must relate either to the field in which you received your degree or the proposed endeavor.
• Provide evidence that the occupation through which you propose to advance the endeavor is a profession, in that it requires at least a bachelor’s degree for entry into the field.

Examples from the Policy Manual:

• While a person with a master’s degree or Ph.D. in engineering proposing an endeavor in the field of engineering may qualify as an advanced degree professional, a similarly educated person who intends to start a bakery may have difficulty establishing that they are an advanced degree professional. While the engineering degree is an advanced degree and the occupation of engineer is a profession, the occupation of baker does not typically require a bachelor’s degree or its foreign equivalent degree for entry into the occupation. The occupation underlying the endeavor is determinative.
  • Progressive experience in a field unrelated to the bachelor’s degree does not equate to an advanced degree in that field. For example, a bachelor's degree in chemistry followed by 5 years of experience as a restaurant manager generally does not equate to a master’s degree in chemistry for the purpose of pursuing a chemistry-related endeavor. It is the petitioner’s burden to demonstrate by a preponderance of the evidence that the progressive experience is related to the specialty. USCIS determines whether experience is related to the specialty on a case-by-case basis.

Eligibility as a Person of Exceptional Ability

• If seeking to provide evidence of eligibility as a person of exceptional ability instead of eligibility based on being an advanced degree professional, provide evidence to satisfy at least 3 of the 6 criteria as well as evidence that, in the totality, demonstrates that you have a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
• Explain how your area of exceptional ability directly relates to your proposed endeavor.

Example from the Policy Manual:

• A person who has computer science education or experience that does not equate to the definition of an advanced degree and who is proposing an endeavor related to computer science may qualify as a person with exceptional ability if USCIS determines that they have satisfied at least 3 of the 6 regulatory criteria and demonstrated their exceptional ability in an area such as computer science, which is directly related to their endeavor. However, if a person with the same credentials were to propose an endeavor that does not relate to the area of computer science, that person would generally not qualify for the classification even if they have exceptional ability in computer science.

B. Eligibility for National Interest Waiver

Prong 1: Evidence That Your Endeavor Has Substantial Merit and National Importance

• Provide a detailed description explaining your proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.
  • The term “endeavor” is more specific than the general occupation; you should offer details not only as to what the occupation normally involves, but what types of work you propose to undertake specifically within that occupation.
  • When explaining the endeavor, you should do so in a straightforward manner, and clearly lay out the potential direct impacts of the endeavor and whether the endeavor will be furthered through the course of your duties at a particular employer or some other way.

Note that benefits to a specific employer alone, even an employer with a national footprint, are not sufficiently relevant to the question of whether your endeavor has national importance. At issue is whether you can demonstrate that your own individual endeavor stands to have broader implications, such as for a field, a region, or the public at large.

Examples from the Policy Manual:

• While engineer is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, and the area of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer.
  • A proposed endeavor to engage in classroom teaching, without broader implications for a field or region, generally does not rise to the level of having national importance for the purpose of establishing eligibility for a national interest waiver. Citing the general importance of the profession of classroom teaching would not alone be sufficient to demonstrate national importance in the context of a national interest waiver request.
  • Proposing to work in an occupation with a national shortage or serve in a consulting capacity for others seeking to work in an occupation with a national shortage alone, is also insufficient.
  • A person developing a drug for a pharmaceutical company may establish national importance by demonstrating the prospective public health benefits of the drug, instead of solely projecting the profits that will accrue to the employer.
  • A person developing a particular technology for use or sale by a given company may not be able to establish national importance based on evidence that this technology will have benefits for the company or its clients alone. To establish broader public or commercial implications at a level consistent with national importance for this field or industry, the petitioner could demonstrate, through the submission of relevant evidence, widespread interest in adoption or licensing of the technology, a novel and important manufacturing or operational process, or how the technology stands to impact the development of similar technology by other companies.
  • A software engineer adapting their employer’s code for various clients will have difficulty demonstrating the national importance of that endeavor, absent additional broader impacts supported by specific evidence.
  • An entrepreneur cannot demonstrate national importance solely by opening a consulting firm for those working or seeking to work in a nationally important occupation. Similarly, statements and evidence regarding the importance of the relevant industry overall, such as the car dealership industry, will not demonstrate that a person seeking to start a car dealership satisfies the national importance prong.

Prong 2: Evidence That You Are Well-Positioned to Advance Your Endeavor

• Provide evidence of your education, skills, knowledge, and record of success in related or similar efforts.
• Provide any evidence of a detailed proposal or plan that you developed, or played a significant role in developing, for future activities related to the proposed endeavor.
• Explain how you plan to pursue your endeavor (for example, while employed at a particular company or through your own company) and any progress towards pursuing the proposed endeavor.
• Provide evidence of the interest or support you have garnered from potential customers, users, investors, or other related entities or persons.
• See the USCIS Policy Manual for a more extensive list of evidence that can demonstrate that you are well-positioned to advance your proposed endeavor. Note that letters may be persuasive when they are from experts in your field who have first-hand knowledge of your achievements, describe those achievements, provide specific examples of how you are well positioned to advance your endeavor, and are supported by other independent evidence. Business plans or other similar descriptions of your plans, while useful in explaining your objectives, should be supported by other independent evidence.

Examples from the Policy Manual:

• USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment of whether you are well-positioned to advance your endeavor
• Evidence that a person has general work experience in a given field may not be sufficient to demonstrate that such person is well positioned to start a consulting business providing expertise in that field.  For instance, if a person’s experience in banking is limited to working as a teller or accounts manager, USCIS may determine that the person has not established they are well positioned to advance an entrepreneurial endeavor to establish a consulting business that will advise U.S. banks nationally on how to improve customer relations.
• For an entrepreneurial endeavor, a strong petition would discuss how your record of success would translate to a proposed plan or forecast for continued success, and steps you have taken toward those proposed activities, and plans that tie into your background and expertise. A persuasive petition could delineate clear details such as whether you have met certain achievements toward the endeavor that may have generated interest from potential customers, users, investors, or other relevant entities or individuals. Beyond this, USCIS would also welcome probative evidence to support how you have anticipated relevant metrics such as market size and share, job creation, and revenue growth.

Prong 3: On Balance, It Would Be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements

• Explain whether, based on the nature of your qualifications or proposed endeavor, it would be impractical to obtain a labor certification. For example, the labor certification process could prevent an employer from hiring a person with unique knowledge or skills, or it may be impractical for an entrepreneur or self-employed inventor to secure a job offer from a U.S. employer. Note that evidence of a national labor shortage in the person’s occupation would not, by itself, satisfy this third prong.
• Explain any benefits to the United States from your prospective contributions, even if other U.S. workers were available. For example, explain if your endeavor has the potential to generate considerable economic impact consistent, for example, with economic revitalization or potential job creation.
• Explain any urgency that may warrant forgoing the labor certification process, such as a time-sensitive national benefit offered by your endeavor.

Example from the Policy Manual:

• When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
  • The person possesses an advanced STEM degree, especially a Ph.D.;
    • The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
    • The person is well positioned to advance the proposed STEM endeavor of national importance.

The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies, as discussed below.

Additional Evidence

• While not required, letters from interested government agencies or quasi-governmental entities in the United States (for example federally-funded research and development centers) can be helpful evidence and, depending on the contents of the letters, can be relevant to all three prongs. For more information, see the Policy Manual.
  • An entrepreneur petitioner may submit additional evidence to establish eligibility for a national interest wavier. See the USCIS Policy Manual for a more extensive list of such evidence.

More Information

• USCIS Policy Manual, Volume 6, Part F, Chapter 5, Advanced Degree or Exceptional Ability
• Title 8, Section 204.5 of the Code of Federal Regulations (8 CFR 204.5)
• Title 20, Part 656 of the Code of Federal Regulations (20 CFR 656)
• Business Immigration USCIS Press Releases
• Health Care Worker Certification