EB-1 and EB-2 Classifications That Don’t Require Labor Certification

While most employment based (EB) preference classifications require applicants to go through the time-consuming labor certification process, there are several categories that are statutorily exempt from the process. With the exception of the multinational managers and executives category, discussed below, these exemptions apply to individuals who can demonstrate a record of accomplishment in their particular field.

Aliens with Extraordinary Ability

The EB-1(A) first-preference immigrant classification is for “priority” workers, meaning those few foreign nationals who have “extraordinary ability” in the sciences, arts, education, business, or athletics. The statute specifies that the prospective immigrant’s extraordinary ability must have been demonstrated by sustained national or international acclaim and be extensively documented. Extraordinary ability is defined in the regulations as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” The EB-1(A) applicant must demonstrate the intent to enter the United States to continue work in the field in which he or she possesses extraordinary ability. However, the regulations provide that an offer of employment is not required and that self-petitioning is permitted. Because of this, the EB-1(A) is an appealing classification for those few that can meet its stringent requirements.

Outstanding Professors or Researchers

The EB-1-2 visa classification is available to prospective immigrants with internationally known records of accomplishment as a professor or researcher. To qualify for this classification, an individual must have at least three years of experience in teaching or research in an area in which they are recognized internationally as outstanding in. Applicants must also either be taking up a tenured-track teaching or research position at a college or university or will be employed in a comparable full-time research position for a qualifying private employer. To be recognized as a qualifying public employer, a company must employ at least three full-time researchers and have achieved documented accomplishments in an academic field. Petitions may only be filed by U.S. employers

Multinational Managers and Executives

The EB-1-3 immigrant visa classification is available to foreign nationals who have been employed outside the United States, for at least one of the most recent three years, in a capacity that is managerial or executive, by the petitioning employer or its subsidiary or affiliate. The prospective employer must have been regularly doing business in the United States for at least one year.

National Interest Waivers

To qualify for an EB-2 national interest waiver, an individual must be a professional with an advanced degree, or have exceptional ability, as defined by USCIS regulations. Additionally, applicants must show that their employment will be in the national interest. USCIS provides that to qualify for a national interest waiver, an applicant must show significantly more than the national benefit required of individuals seeking to demonstrate exceptional ability. EB-2 national interest waiver applicants can self-petition and do not need to have a job offer.

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