EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?

There are five categories of U.S. immigrant visas available to foreign workers (that is, visas that grant you "lawful permanent residence" or a "green card"). These are known as employment-based or "EB" visas.

The second category of employment-based visas is called EB-2. Being "employment-based," the EB-2 requires you either to have a job offer from a U.S. employer or to qualify for what's called a National Interest Waiver (discussed more below).

The EB-2 visa has two sub-categories:

• one for workers with advanced degrees, and
• one for workers with exceptional ability.

Both subcategories are commonly and collectively referred to simply as "EB-2." This article, however, discusses only the exceptional ability visa.

What Kinds of Jobs Might Qualify a Worker for an EB-2 Exceptional Ability Visa?

Some examples of workers who qualify for an EB-2 exceptional ability visa might include economists, lawyers, doctors, veterinarians, physicists, market research analysts, geographers, mental health workers, and marriage and family therapists.

This category is also great for professionals in STEM (science, technology, engineering, and mathematics), because being in these fields might help them qualify for a National Interest Waiver and thus not need a job offer (as discussed more below).

Extraordinary Ability vs. Exceptional Ability: Advantages of EB-2

The EB-2 exceptional ability visa is easily confused with the EB-1 visa for persons of extraordinary ability. To make things more confusing, there is another work visa with a confusing name: the O-1 visa for extraordinary ability, which has very similar requirements to the EB-1 visa for extraordinary ability. However, though they all have similar requirements, these three visas are distinct. The differences give the EB-2 some advantages over the others, as follows.

Comparatively Lower Standards for EB-2 Approval

Exceptional ability is a lower standard than extraordinary ability. Exceptional ability means a level of expertise in the field significantly above average. The EB-1 and O-1 visas, by contrast, require meeting a higher standard: extraordinary ability means applicants are among the small percentage of people who have risen to the top of their field, demonstrated by evidence of sustained national or international acclaim.

A key advantage of the lower standards for an EB-2 exceptional ability visa is that the foreign worker need not have international acclaim. Instead, you must prove your expertise by meeting at least three out of six categories of criteria.

Ability to Self-Petition for an EB-2

The O-1 visa requires a U.S. employer to petition on the applicant's behalf. Typically, the EB-2 also requires the person to have a job offer from a U.S. employer. But that's not the end of the analysis: You can petition for yourself in category EB-2 if you successfully apply for what's called a "National Interest Waiver" (discussed more below).

The EB-1 does not require a job offer, only that the person will continue working in their field to benefit the United States.

An EB-2 Visa Confers a Green Card

One of the reasons the EB-2 is so popular is that it is an immigrant visa, which means you are applying for permanent residency (a "green card"). This gives the EB-2 (and the EB-1) a big advantage over the O-1 visa, which is a nonimmigrant or limited-term visa.

EB-2 NIW: What Is a National Interest Waiver?

A National Interest Waiver (NIW) is a way to bypass some of the usual requirements to qualify for an EB-2 visa. Because both EB-2 subcategories usually require applicants to have a job offer from a U.S. employer, this makes the NIW very popular. On top of that, the U.S. employer would have to obtain a labor certification, a complex process to certify that there is a shortage of U.S. workers available to fill the open job position, and that employing a foreign worker will not negatively affect U.S. workers in similar positions.

Applying for an EB-2 with a National Interest Waiver, often called an EB-2 NIW, means asking the U.S. government to waive or overlook the job offer and labor certification requirements. This can save you and any employer a lot of time and money, and allows you to petition for yourself if you do not yet have a U.S. employer (for example, if you plan to start your own company).

How to Qualify for a NIW

It is not easy to qualify for a National Interest Waiver. The NIW requires convincing U.S. Citizenship and Immigration Services (USCIS) that your presence in the U.S. would be in the "national interest." For EB-2 exceptional ability visas, applicants also must prove that they will "substantially benefit" the U.S. national economy, cultural interests, educational interests, or future welfare. This means you have to have a detailed plan for when you come to the U.S., referred to as a "proposed endeavor," which will benefit the United States.

Substantial merit and national importance: The first consideration for a NIW is whether your proposed endeavor has both substantial merit and national importance. This means showing that your goals are important to the nation as a whole, although they do not have to impact the entire nation. For example, making significant advancements in your field might have national importance, as might a business which will have significant employment or economic potential, even if the effect would be localized. This makes NIW a great option for STEM professionals in emerging areas such as technology. Applicants will also have to show that the field of work has "substantial intrinsic merit"—in other words, that it is worthy in and of itself.

You are likely to achieve your goals: Next, USCIS will consider whether you are "well-positioned" to advance your proposed endeavor. This requires proving you will be able to achieve what you are setting out to do in the United States, whether you are starting a business, researching medicines, or whatever your goals might be. If you are applying for an exceptional ability visa, this might overlap considerably with the evidence you meet the EB-2 criteria.

On balance, the U.S. would benefit from waiving the job offer requirements: The third NIW consideration is a balancing test to determine if it would be better to permit the applicant to work in the United States without first requiring them to get a labor certification. The labor certification is meant to protect the U.S. job market, so this can be a difficult argument to make.

However, some situations mean that the labor cert process would be unnecessary. If you are self-employed or starting a business to employ U.S. workers, for example, there is no need to protect the U.S. labor market from you. Similarly, if your proposed endeavor is sufficiently urgent, then it would benefit the U.S. to permit you to skip the lengthy labor certification process.

How Hard Is It to Get an EB-2 NIW?

USCIS reports an increase in EB-2 petitions over the past few years, especially for NIW cases. Approval rates stayed at a steady rate from 2018 through 2022, but dropped from 97% to 90% in 2023. Despite the complexity in these cases, a 90% approval rate is still rather high.

However, that doesn't mean you should apply for an EB-2 NIW if you don't meet the criteria: USCIS is not afraid to take a strong stance on types of petitions that don't make the cut.

How Long Does It Take to Get an EB-2 Visa?

Whether you apply for EB-2 through your employer or self-petition for an EB-2 NIW, the process can potentially take a very long time. For details, see Timeline for Sponsoring an Immigrant Worker for a Green Card.

The labor certification process itself takes months, which is one reason the NIW is so popular. Once that is done—or if you apply for an NIW to skip the labor certification process—it can take USCIS a year or more to process your EB-2 petition. As of early 2024, USCIS reports processing times ranging from several months to almost two years, depending on the complexity of the petition.

With the extensive documentation required for exceptional ability and NIW petitions, your petition will likely take a long time to process. However, premium processing is available for a high fee. If you choose premium processing for a NIW case, USCIS promises to give you a decision in 45 business days (or refund your fee).

Getting Legal Help With an EB-2 Case

The EB-2 exceptional ability petition is one of the more complicated ones to put together due to the extensive documentation required to fulfill the criteria. Applying for a National Interest Waiver is even more complicated, as an argument must be made based on caselaw, guidelines, and advisories, which can sometimes be unclear or contradictory.

And because of the very long processing times, it is very important to avoid mistakes, which can set you back even longer if USCIS asks for more evidence. Your best bet to apply for an EB-2 exceptional ability visa or EB-2 NIW is to hire an attorney to help.