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Immigration and Nationality Act, Section 203(2)
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -
(A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or 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.
(B) (i) Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
(ii) (I) The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if--
(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest.
(II) No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 204(b) , and the Attorney General may not adjust the status of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien under section 245, until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 101(a)(15)(J), in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.
(III) Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section 204 (a), or the filing of an application for adjustment of status under section 245, by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II).
(IV) The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section 203(b)(2)(B)before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section 203(b)(2)(B) except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section101(a)(15)(J) before a visa can be issued to the alien under section 204(b) or the status of the alien is adjusted to permanent resident under section 245.
(C) Determination of exceptional ability. - In determining under subparagraph (A) whether an immigrant has exceptional ability, the possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability.
What does the law mean in plain English?
Let's break down the law into bite-size pieces. 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 and have an employer who files a Labor Certification on your behalf – or
a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability and can show that your work in the United states is in the national interest, in which case a U.S. employer is not necessary and you can self-petition.
For Physicians obtaining a National Interest Waiver requires the following:
(i) The physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs;
and
(ii) a Federal agency or a department of public health in any State has previously determined that the physician's work in such an area or at such facility was in the public interest.
Below are the certain requirements you will need to keep in mind:
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.
Individuals whose Exceptional Ability is sought by an employer in the United States.
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."
You must meet at least three of the criteria below.
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.
Please be dvised that these criteria are different than those related to an E1-1 or EB-1 Aliens of Extraordinary Ability. For More discussions on that subject please go to http://www.eb1attorney.net/
Individuals whose Exceptional Ability merits a National Interest Waiver of the requirement of having an employer.
Individuals seeking a NIW are typically granted if they show they have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
You must meet at least three of the criteria below and demonstrate that it is in the national interest that you work permanently in the United States.
Requirement 1:You must show that you plan on working in the United States in an area of substantial intrinsic merit.
Under the first prong of what is known as 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.
Requirement 2: You must show that the proposed impact of your work is national in scope.
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.
Requirement 3: You must show waiving the labor certification requirement would benefit the national interests of the United States.
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.
Demonstrating that your business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify you for an NIW. However, you still have to show that the creation of jobs domestically for U.S. workers may 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 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
Family of EB-2 Visa Holders
Your spouse and children under the age of 18 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).
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