EB2 & EB3

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 foreign national who has exceptional ability.

 

Below are the occupational categories and requirements:

 

Advanced Degree: The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.

 

Exceptional Ability: You must be able to show exceptional ability in the sciences, arts, or business.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” Official academic record shows 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.

 

You must meet at least three of the criteria below:

 

  • 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.

 

 

National Interest Waiver: Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.  Those seeking a national interest waiver may self-petition and demonstrate that it is in the national interest that you work permanently in the United States.

 

Note:   Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750. Please see the Department of Labor’s “Foreign Labor Certification” link to the right for more information.

 

To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker. Your spouse and children under the age of 21 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD).

 

 

EB2 & EB3 – Requirements for PERM

 

PERM (Program Electronic Review Management) is an electronic processing system for filing labor certification applications for employment based green card. In March 2005, PERM came into use. Under the PERM system, labor certification applications are filed electronically and directly with the U.S. Department of Labor (DOL).

 

The standards used in making labor certification determinations under the PERM system are based on 1) if there are not sufficient United States workers who are able, willing, qualified and available; 2) if the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and 3) if the employer has met the procedural requirements of the regulations.

 

PERM-based cases typically fall into the Employment-Based Second (EB-2) or Third (EB-3) Preference Category.

 

The job market must be tested through various forms of recruitment, and any U.S. worker who applies for the job and meets the stated minimum requirements is considered qualified (but may not be willing, able, or available). The employer cannot choose the “best-qualified applicant” in the PERM context. The employer must be prepared to hire the foreign worker on a full-time and permanent basis. There must be a bona fide job opening available to U.S. workers. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.

 

 

Filing of ETA Form 9089: The employer must first request a prevailing wage determination from the State Workforce Agency (“SWA”) having jurisdiction over the proposed area of intended employment. The U.S. employer requests a permanent labor certification by completing an Application for Permanent Employment Certification (“ETA Form 9089″). The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

 

Pre-Filing Recruitment Requirements: The employer filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A precertified occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.

 

Mandatory Recruitment Steps: The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. The requirement of a job order and the requirement of two print advertisements are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process described below:

 

  • Job Orders: The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application will serve as documentation of this step.
  • Advertisements in Newspaper or Professional Journals: The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.

 

  • Additional Recruitment Steps: The employer must also select three additional recruitment steps from the alternatives listed below:

 

  • Job fairs
  • Employer’s website
  • Job search website other than the employer’s
  • On-campus recruiting
  • Trade or professional organizations
  • Private employment firms
  • Employee referral program with incentives
  • Campus placement offices
  • Local and ethnic newspapers
  • Radio and television advertisements

 

Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application.

 

Professional Occupations: The employer must recruit under the standards for professional occupations set forth in 20 CFR §656.17(e)(1) if the occupation involved is on the list of occupations (published in Appendix A to the preamble of the final PERM regulation) for which a bachelor’s or higher degree is a customary requirement. The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the Certifying Officer prior to rendering a final determination.

 

Nonprofessional Occupations: If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

 

 

The essentials regarding recruitments and job requirements:

 

  • Job Order: The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

 

  • Newspaper Advertisements: The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. If the job opportunity is located in a rural area of intended employment that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. (Note:  Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations).

 

  • Advertising Requirements: Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must: (i) name the employer; (ii)direct applicants to report or send resumes, as appropriate for the occupation, to the employer; (iii) provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; (iv)indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (v) not contain a wage rate lower than the prevailing wage rate; (vi) not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (vii) not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

 

  • Job Duties, Restrictive Requirements, and Business Necessity: The job opportunity’s requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation (“SVP”) level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

 

  • Foreign Language Requirements: A foreign language requirement cannot be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based on: The nature of the occupation, e.g., translator; or
    The need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English, as documented by: (i) the employer furnishing the number and proportion of its clients, contractors, or employees who cannot communicate in English, and/or a detailed plan to market products or services in a foreign country; and (ii) a detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who cannot communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors cannot communicate in English.

 

  • Combined Occupations: If the job opportunity involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity. Combination occupations can be documented by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity.

 

  • Alternative Requirements: Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought and if the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

 

  • Actual Minimum Requirements: DOL will evaluate the employer’s actual minimum requirements in accordance with these rules: (i) the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity; and (ii) the employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity. If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer’s actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee.

 

The employer cannot require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless: (i) the alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought; or (ii) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

 

For purposes of the above provision, the term “employer” means an entity with the same Federal Employer Identification Number. A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records. In evaluating whether the alien beneficiary satisfies the employer’s actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer’s expense unless the employer offers similar training to domestic worker applicants.

 

 

Recruitment Report: The U.S. employer must prepare a recruitment report signed by the employer or the employer’s representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected. A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers. The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

 

Conditions of Employment: Working conditions must be normal to the occupation in the area and industry. Live-in requirements are acceptable for household domestic service workers only if the employer can demonstrate the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer and there are not cost-effective alternatives to a live-in household requirement.

 

Layoffs: If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice. For the purposes of the above provision, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

 

Alien Influence and Control over Job Opportunity: If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, (i.e. the job is available to all U.S. workers), and must provide to the Certifying Officer, the following supporting documentation:

 

  • A copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity;
  • A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business’ structure, and a description of the relationships to each other and to the alien beneficiary;
  • The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary;
  • The name of the business’ official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) of the business’ official(s) having control or influence over hiring decisions involving the position for which labor certification is sought; and
  • If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.

 

 

Audits/Requests for Information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.

 

Retention of Records: The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.

 

Refiling of a Prior Labor Certification Application under PERM: If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.

 

Adjudication: If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” by the Certifying Officer and returned to the employer or agent who submitted the application. The employer or agent then files the beneficiary’s employment-based I-140 petition with USCIS and includes the certified ETA Form 9089 with the petition.

 

Appeal of Denials: A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals (“BALCA”). BALCA may affirm the labor certification denial, direct the CO to approve the labor certification or remand the case to the CO for reconsideration in a manner consistent with its instructions.

 

EB2-Requirements for a National Interest Waiver

 

The category includes “members of the professions holding advanced degrees or their equivalent,” and “individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.”

 

Applicants with the exception of applicants applying for an exemption known as National Interest Waiver must generally have an approved labor certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker (form I-140) with the USCIS.

 

As there is no statutory or regulatory definition of the term “national interest,” USCIS relies on a 1998 Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver. See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (“NYSDOT”).

 

Since there is no official definition of “national interest,” the USCIS relies upon the 1998 decision by its appellate body, the Administrative Appeals Office, in the case of the New York State Department of Transportation (EAC 96 063 51031, AAO August 7, 1998) to establish the standard by which National Interest Waivers are approved or denied. These thresholds are: (1) The field in which the alien seeks employment should be one of substantial intrinsic merit; (2) the benefit proposed by the alien should be national in scope; and (iii)
Failing to waive the requirement for labor certification would adversely affect the national interest.

 

Prior to this decision, a wider range of beneficiaries were granted approval for a National Interest Waiver; however, this decision has created a more stringent standard by which USCIS officers judge National Interest Waiver petitions. The first two prongs of this test are relatively easy to meet, but they cannot support a petition by themselves. More often than not applicants receive a request-for-evidence (RFE) in reference to the third prong rather than the first two prongs.

 

Prong#1 – You must show that you plan on working in the United States in an area of substantial intrinsic merit.

 

Most scientific or research endeavors would easily fulfill the requirements of the first prong; however, the arts, business and education can also be considered to have “substantial intrinsic merit.” In order to show that the alien’s field meets this threshold, the petition may include a letter from the beneficiary or applicant explaining the importance of the proposed field, articles expounding on the significance of the proposed field, or letters from experts corroborating the value of the field. In preparing this evidence, it is a good idea to keep the six factors from the Mississippi Phosphate decision in mind:

 

  • The U.S. economy
  • Working conditions of U.S. workers
  • Education and training for U.S. children and under-qualified workers
  • National health care
  • Affordable housing
  • The U.S. environment and effective use of national resources

 

Under the first prong of the NYSDOT test, it is important for you to focus on the proposed employment. USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent.  Some of the evidence you may submit to demonstrate that you plan on working in the United States in an area of substantial intrinsic merit includes:

 

  • A letter from you and/or your company describing the work and its importance
  • Articles or other published media discussing your and/or your company’s work and its importance
  • Letters from experts in the field attesting to your work and its importance
  • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

 

Prong#2 – You must show that the proposed impact of your work is national in scope.

 

The second prong is also fairly easy to meet, but while an alien may meet the other two prongs, if the petition does not demonstrate that the alien’s contribution is national in scope, the petition will be denied. If the proposed job is confined to a particular geographic location, it is essential to demonstrate how it impacts the nation as a whole. For example, the NYSDOT explains that while pro bono services as a whole benefit the national interest, the impact of one pro bono lawyer is negligible in the national sphere and therefore would not satisfy the second prong of the test. However, employment with the New York State Department of Transportation may be localized but because the transportation system is an essential part of the national transportation network, that job would still be national in scope. In addition to letters from experts and published articles, other evidence to support that the work of the foreign beneficiary meets this threshold include letters from current or past employers explaining the national importance of the proposed field of employment and copies of contracts or licenses that demonstrate the scope of the field.

 

While your employment may be limited to a particular geographic area, you must establish a benefit to more than a particular region of the country. Under the second prong of the NYSDOT test, you must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. Some of the evidence you may submit to demonstrate that the proposed impact of your work is national in scope includes:

 

  • Published articles or media reports
  • Copies of contracts, agreements, or licenses showing the scope and impact
  • Letters from current and former employers discussing your work and its national importance
  • Letters from experts in the field attesting to your work and its national importance
  • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

 

Prong#3: You must show waiving the labor certification requirement would benefit the national interests of the United States

 

The most difficult threshold to meet is the third prong and it can also be the most confusing to prepare. The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Thus, when deciding whether to grant a waiver of the labor certification requirement, USCIS looks at all of the evidence to see whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have a degree of influence on your field that distinguishes you from your colleagues. The national interest evaluation is prospective. This means you must show that you have a past record of specific prior achievements that indicate future benefits to the national interests of the United States.

 

There are two important aspects of USCIS’ expectations to consider in preparing this section of the National Interest Waiver petition:

 

  • The alien should be distinguished in his or her field and the benefit the beneficiary offers to the national interest should far exceed the majority of his or her colleagues.
  • The alien’s benefit to the national interest should beprospective in nature; however, this should be demonstrated by a past record of significant achievements.

 

While the National Interest Waiver does not use the same criteria as a first-preference employment visa, it may help to keep them in mind when preparing evidence for this consideration. Some of the evidence you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

 

  • Copies of published articles that cite or otherwise recognize your achievements
  • Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators
  • Documents showing how your work is being implemented by others, for example:
    • Contracts with companies using your or your company’s products
    • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
    • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field

 

EB-2 – Requirements for Exceptional Ability

 

For some foreign nationals, the lack of an advanced degree may not necessarily be a barrier to filing an EB2 case. There is an often-overlooked alternative way to qualify for EB2 classification based upon your exceptional ability. The starting point for an EB2 exceptional ability case is the filing of a PERM labor certification (LC) application with the U.S. Department of Labor. The PERM LC filing must set forth the minimum job requirements, under standard procedures. It is possible to utilize an LC with EB3 level requirements for an EB2 exceptional ability case, if you can demonstrate exceptional ability, and your employer can establish the need for you with that level of ability.

 

Below are some key requirements you must fulfill to apply for an EB-2 Exceptional Ability Visa. For each requirement, we have included forms of evidence that you may submit to meet the requirement and other tips to help you prepare your petition. Providing the required initial evidence does not, in itself, establish that you are an individual of exceptional ability. USCIS will evaluate the evidence you submit in its entirety to make a final merits determination regarding the required high level of expertise for this visa category.

 

Exceptional ability applicants must hold a degree and expertise significantly above most individuals normally encountered in the applicant’s field. Applicants must show that they will substantially benefit the national economy, cultural, educational interests and/or welfare of the United States because of their exceptional skills in the sciences, arts, or business.

 

To qualify for the EB-2 exceptional ability classification, you must show that you have exceptional ability in the sciences, arts, or business. The initial evidence must include at least 3 of the 6 types of evidence listed below:

 

Requirement# 1:       You must submit evidence for at least 3 of the 6 questions below:

 

  • Official academic record demonstrating that the alien has a degree, diploma, certificate from an academic institution relating to the area of exceptional ability

 

  • Copies of official transcripts
  • Certified copies of the actual degree, diploma, certificate or similar award
  • Any other official documentation from the school’s Office of the Registrar
  • If you obtained your degree outside the United States, an evaluation from an educational evaluation agency

 

  • You has at least 10 years of full-time experience in the field of your exceptional ability

 

  • Letters from current and former employers
  • Such letters should be on letterhead and should be signed by someone who has the authority to confirm your employment
  • If applicable, copies of contracts between you and current or former employers describing the job and the work performed

 

 

  • You have a license or certification to practice in your profession or occupation

 

 

  • A job description, federal or state labor department(s) job description information, or other documents from professional associations showing that the job requires a license or certification
  • A copy of your current license or certification

 

Note that licensure should generally be unrestricted

 

 

  • Evidence of membership in professional associations based on ability

 

  • Documents describing the association’s goals, mission, size, and target membership
  • Copies of membership cards or certificates
  • Official statements from the professional associations confirming your membership
  • Documents showing the minimum requirements and criteria used for membership in the professional association
  • Other relevant requirements for membership

 

 

  • You have been recognized for achievements and significant contributions to your industry or field

 

  • Documents showing that your achievements and contributions are significant and that they have provoked widespread public commentary in the field
  • This may be shown by submitting copies of articles, media reports, blog posts, etc.
  • Testimony or support letters from experts discussing your achievements and significant contributions to your field
  • Expert testimony should generally be accompanied by documentation showing the expert’s own credentials, for example, his/her C.V.
  • Documents showing how your work is being implemented by others, for example:
  • Contracts with companies using your services or products
  • Copies of documents showing licensed technology that you invented and how that licensed technology is being used by others
  • Copies of patents awarded to you with documents showing how they are being used and why they are significant to your field

 

 

  • You command a high salary or other remuneration for your services

 

  • Contracts between you and companies or individuals using your products or services
  • Copies of employment contracts detailing the salary you were paid or will be paid
  • Copies of payroll documents or tax returns detailing the wage you were paid as compared to others in your field
  • Evidence establishing that you have received other significant forms of compensation for your services, which may include, but is not limited to, equity in-lieu of cash remuneration, deferred compensation, profits from the sale of a business you started, or other forms of remuneration in addition to salary, as compared to others in your field
  • If you have established and sold a series of companies, documents relating to the sale of those companies and any other remuneration you may have received as part of the sale, as compared to others in your field
  • A statistical comparison of the salaries in the field in which you are starting your business from a government or private institution, or similar organization, that shows the salary or other remuneration you commanded, or will command, is significantly higher than that commanded by others in the field

 

 

Requirement# 2:       You must show that you will substantially benefit prospectively the U.S. economy, U.S. cultural interests, U.S. educational interests, or U.S. welfare

 

A prospective benefit is generally shown by documenting a past record of achievements and explaining how that indicates your future success.

 

  • Some of the evidence you may submit to demonstrate how you will substantially benefit the United States prospectively includes:
  • Documents showing how your past accomplishments benefit the United States as a whole and specifying which element(s) (national economy, cultural or educational interest, or welfare of the United States) your entrepreneurial enterprise will benefit
  • Copies of awards or any special recognition you may have received, with details about the criteria used to grant the award or recognition
  • Published reports about your successes
  • Letters from current or former employers documenting your prior work experience, to include information about your accomplishments and their significance, and how these accomplishments benefit the United States
  • Letters from experts in your field regarding your accomplishments and their significance, including how your work will prospectively benefit the United States
  • Testimonial letters should also include information about the expert’s own credentials, such as a C.V.
  • Evidence of past achievements should be accompanied with documentation or explanations of how these accomplishments indicate future or continued success

 

Whether you can qualify for EB2 based on exceptional ability should be determined on a case-by-case basis. It certainly would be possible to document, to the satisfaction of the USCIS, many variations of possible expertise that is significantly above others in the specific field, and that demonstrates a level of expertise required by the employer.