280 Dual Citizenship: FAM09-42.32(b) - Notes Employment-Based SecondPreference Immigrants
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280 Dual Citizenship: FAM09-42.32(b) - Notes Employment-Based SecondPreference Immigrants
N1 Professionals Holding Advanced Degrees (TL:VISA-54; 2-28-92)
An alien may qualify as an employment-based second preference immigrant if
the alien is a member of the professions holding an advanced degree or the
equivalent. The alien must be the beneficiary of a petition approved by
the Immigration and Naturalization Service. [See N4 below.]
N1.1 Definitions
N1.1-1 Defining "Advanced Degree" (TL:VISA-54; 2-28-92)
"Advanced degree" means any U.S. academic or professional degree (or
foreign equivalent degree) above that of baccalaureate.
N1.1-2 Master's Degree Equivalent (TL:VISA-54; 2-28-92)
The conference committee report (H.R. Rep. No. 101-955) states that a
bachelor degree plus five years of progressive experience in the
professions should be considered as the equivalent of a master's degree.
N1.1-3 Doctorate Degree Equivalent (TL:VISA-54; 2-28-92)
Although the Immigration and Naturalization Service (INS) will not
evaluate the equivalence of education and experience to a doctorate, if a
doctorate (or a foreign equivalent degree) is normally required by the
specialty, the alien must possess such a degree.
N1.1-4 Defining "Profession " (TL:VISA-54; 2-28-92)
INA 101(a)(32) defines "profession" as including but not limited to
architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academies, or seminaries. INS
regulations also include any occupation for which a U.S. baccalaureate
degree (or foreign equivalent) is the minimum requirement for entry into
the occupation.
N1.2 Determining Professional Status (TL:VISA-54; 2-28-92)
Evidence to establish an alien as a member of the professions holding an
advanced degree should be in the form of the following:
(1) An official academic record showing possession of an advanced degree
(or foreign equivalent); or
(2) An official academic record showing possession of a baccalaureate
degree (or foreign equivalent) and a letter from current or former
employer(s) showing at least five years of progressive post-baccalaureate
experience in the specialty.
N2 Aliens of Exceptional Ability (TL:VISA-54; 2-28-92)
An alien may qualify as an employment based-second preference immigrant if
the alien has exceptional ability in the sciences, arts, or business,
which will substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the United States, and
the alien's services in the sciences, arts, or business are sought by an
employer in the United States.
N2.1 Determining Exceptional Ability (TL:VISA-54; 2-28-92)
a. 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.
b. "Exceptional ability" has been defined as something more than what is
usual, ordinary, or common, and requires some rare or unusual talent, or
unique or extraordinary ability in a calling which, of itself, requires
that talent or skill. Individuals must have attained a status in their
field wherein contemporaries recognize exceptional ability.
c. To establish evidence of exceptional ability, the petition must be
accompanied by at least 3 of the following:
(1) An official academic record showing a degree, diploma, certificate,
or similar award from a college, university, school, or other institution
of learning relating to the area of exceptional ability;
(2) Letter(s) from current or former employer(s) showing evidence the
alien has at least ten years of full-time experience in the occupation;
(3) A license to practice the profession or certification for a
particular profession or occupation;
(4) Evidence that the alien has commanded a salary, or other remuneration
for services, which demonstrates exceptional ability;
(5) Evidence of membership in professional associations; or
(6) Evidence of recognition for achievements and significant
contributions to the industry or field by peers, governmental entities, or
professional or business organizations.
d. If the above standards do not readily apply the petitioner may submit
comparable evidence to establish the beneficiary's eligibility.
N3 Labor Certification/Job Offer (TL:VISA-54; 2-28-92)
a. Although a labor certification is required for the second preference
category, the Attorney General may, when he deems it to be in the national
interest, waive the requirement that an alien's services in the sciences,
arts, or business be sought by an employer in the United States.
b. The Department of Labor has stated that if there is no employer, there
is no basis for issuing a labor certification. There may be, therefore,
some valid petitions for employer-based second preference that do not have
an underlying labor certification.
N4 Petitions (TL:VISA-54; 2-28-92)
Any U.S. employer may file a petition for classification of an alien under
INA 203(b)(2) as an alien who is a member of the professions holding an
advanced degree or an alien of exceptional ability in the sciences, arts,
or business. If an alien is claiming exceptional ability and seeking an
exemption from the job offer requirement under INA 203(b)(2)(B), then the
alien, or anyone on the alien's behalf, may file the petition.
N5 Spouse and Children (TL:VISA-54; 2-28-92)
The spouse, or the child of a marriage which existed at the time of the
principal alien's admission into the United States, is entitled to
derivative status and may accompany or follow to join the principal
applicant. A spouse or child acquired subsequent to the principal alien's
admission is not entitled to derivative status.
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