The second preference category of employment-based immigration includes aliens of exceptional ability and aliens holding advanced degrees in professional fields. 

Each year the second preference category is allotted about 40,000 visas, including any not used in the first preference.  Generally, this is a sufficient number of visas and there is no backlog.  However, backlogs do exist in the category for Indians and Chinese nationals.  There is no distinction in the allocation of visas between the two second preference subcategories.  As a general rule, a labor certification is required, although in some cases a national interest waiver is available. 

Aliens of Exceptional Ability

The key to demonstrating exceptional ability is to show that the applicant possesses a level of expertise above that which would normally be encountered in the field.  Exceptional ability is limited to aliens in the fields of arts, science and business.  After some debate, it now seems clear that for purposes of this category, athletics are to be considered an art.

In making the application, the INS requires at least three of the following six types of evidence:

• Official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability,
• Evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
• A license to practice or certification;
• Evidence of a high salary or other form of payment that indicates exceptional ability;
• Evidence of membership in professional associations; and
• Evidence of recognition by peers or professional associations for achievements and contributions to the field.

Other comparable evidence may be submitted.

Advanced Degree Professionals

The INS defines a profession as an occupation in which a baccalaureate degree is the minimum requirement for entry.  An advanced degree is any academic or professional degree above the level of a bachelor’s degree.  The Immigration and Nationality Act allows for the substitution of five years progressive experience in the field to substitute for the advanced degree.  This rule has recently been the subject of some litigation, and the INS has tried to respond by following more closely the law as written.

Along with the results of the labor certification, the application should include official proof of the alien’s educational credentials.

The application also requires proof that the US Department of Labor has certified that there are no available US workers for the position – the labor certification.  The requirements for a labor certification are quite detailed, and will be covered in an upcoming newsletter.  National interest waivers are also quite complex, and will be covered in a future article.