This article is from the FAQ, by with numerous contributions by others.
(1) Entitlement to Status
An alien shall be classifiable as an employment-based second preference
immigrant under INA 203(b)(2) if the consular officer has received from
INS a Petition for Immigrant Worker approved in accordance with INA 204 to
accord the alien such preference status, or official notification of such
an approval, and the consular officer is satisfied that the alien is
within one of the classes described in INA 203(b)(2).
(2) Entitlement to Derivative Status
Pursuant to INA 203(d), and whether or not named in the petition, the
child or spouse of a employment-based second preference immigrant, if not
otherwise entitled to an immigrant status and the immediate issuance of a
visa, is entitled to a derivative status corresponding to the
classification and priority date of the beneficiary of the petition.
RELATED STATUTORY PROVISIONS
INA 203(b), in part
(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) WAIVER OF JOB OFFER.--The Attorney General may, when he deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business
be sought by an employer in the United States.
(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
For the provisions of INA 203(d), see section 42.31 (Related Statutory