EB-2 Visa Lawyer in Silver Spring

EB-2 Eligibility: Three Subcategories

The EB-2 category covers three distinct paths to eligibility. Which one applies to your background determines how your petition is built and what evidence USCIS can expect.

Advanced Degree Professional

This subcategory covers applicants who hold a U.S. master’s degree or higher, or a foreign equivalent. Applicants with a U.S. bachelor’s degree can also qualify with at least five years of progressive post-baccalaureate experience in their field. The position offered, or in a National Interest Waiver case, the proposed endeavor, must require that advanced degree.

Exceptional Ability

Exceptional ability means a degree of expertise significantly above what is ordinarily encountered in the sciences, arts, or business. USCIS evaluates this through defined evidentiary criteria, and an applicant must satisfy at least three of them. Supporting documentation might include academic degrees, professional licenses, salaries that are high relative to peers, membership in professional associations, or recognition from employers and industry organizations.

National Interest Waiver

Either the advanced degree or exceptional ability basis can support a National Interest Waiver petition. To obtain the waiver, an applicant must satisfy the three-prong test from Matter of Dhanasar (2016): the proposed endeavor has substantial merit and national importance, the applicant is well-positioned to advance it, and waiving the job offer and labor certification requirements benefits the national interest on balance. Researchers, physicians, engineers, and entrepreneurs are among those who commonly pursue this route.

PERM Sponsorship vs. the National Interest Waiver

The two main EB-2 filing paths differ fundamentally in whether an employer is involved. We represent clients in EB-2 matters along both routes.

In the standard employer-sponsored path, the employer first files a PERM labor certification with the Department of Labor. PERM requires the employer to demonstrate, through a defined recruitment process, that no qualified U.S. worker is available for the position. Once PERM is approved, the employer files Form I-140 on the worker’s behalf.

The National Interest Waiver removes both the job offer and the PERM labor certification requirements. The applicant files Form I-140 directly, without an employer, making the case for why their work serves the national interest. This path suits applicants whose careers don’t fit neatly into a single employer’s sponsorship structure.

After I-140 approval, the next step depends on where the applicant is located. Those already in the United States may file Form I-485 to adjust status to lawful permanent residence. Applicants abroad complete consular processing at a U.S. embassy or consulate.