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Advanced Degree Professionals
The INS regulations define ''profession'' as any of the
occupations listed in the statutory definition plus ''any
occupation for which a United States baccalaureate or its
foreign equivalent is the minimum requirement for entry into
the occupation.'' Those in the listed occupations are: ''architects,
engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academics, or seminaries.''
To qualify in the second EB preference as a member of the
professions it is not enough to hold a bachelor's degree.
The alien must have an advanced degree, which the Service
takes to mean ''any United States academic or professional
degree or a foreign equivalent degree above that of baccalaureate.''
As an equivalent to the master's degree, the alien may possess
a U.S. or equivalent foreign baccalaureate degree followed
by at least five years of progressive experience in the specialty.
Approval of an advanced degree EB-2 petition requires the
petitioner to establish two key elements:
- the position itself must require and advanced-degree professional;
and
- the alien has to have the advanced degree or its equivalent.
Each is a separate requirement. The job must require either
(1) a master's degree or (2) a U.S. baccalaureate degree or
foreign equivalent followed by five years of progressive experience
in the specialty. The applicant who lacks the advanced degree
must have the baccalaureate plus experience. If the profession
requires a doctoral degree, the alien must have that degree.
A degree must be documented by an official transcript from the
institution that granted the degree. Experience must be proven
through letters from current or former employer(s). A preference
petition for a professional will be denied without evidence
that the alien qualifies in the profession; the Service will
not accept experience alone.
Exceptional Ability
in the Sciences, Arts, or Business
The INS defines ''[e]xceptional ability in the sciences, arts,
or business'' as ''a degree of expertise significantly above
that ordinarily encountered in the sciences, arts, or business.''
The regulations require submission of at least three of the
following in support of the petition:
- An official academic record showing that the alien has
a degree, diploma, certificate, or similar award from a
college, university, school, or other institution of learning
relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former
employer(s) showing that the alien has at least ten years
of full-time experience in the occupation for which he or
she is being sought;
- A license to practice the profession or certification
for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other
remuneration for services, which demonstrates exceptional
ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant
contributions to the industry or field by peers, government
entities, or professional or business organizations.
The regulations, however, do not limit qualifying evidence to
these seven categories. If the beneficiary's occupation does
not conform to these standards, comparable evidence of eligibility
may be submitted. On the other hand, the possession of a degree
or similar educational award, license or certification to practice
a particular profession is not by itself sufficient evidence
of the exceptional ability required. Exceptional ability refers
to persons who are particularly qualified in their callings,
not simply to persons who have callings.
As with the professional with an advanced degree, the requirement
is two-pronged. Not only must the alien have exceptional ability,
but the job offer, unless waived, must also demonstrate that
the job requires a person of exceptional ability.
Under the second preference, the alien's exceptional ability
must be in the sciences, arts or business. These terms are defined
neither in the INA nor in the INS regulations. The term ''art''
has been determined by the INS to include both the esthetic/fine
arts and the mechanical/ industrial arts. Fine arts includes
painting, sculpture, music, poetry, drawing, architecture, dancing,
and dramatic art. Mechanical/industrial arts include weaving,
painting, arithmetic, navigation, etc. Athletes of exceptional
ability are also considered within the ''arts'' for purposes
of the present second preference classification.
A regulation of the Department of Labor gives a somewhat different
reading to ''science or art,'' a term it uses for purposes of
its Schedule ''A,'' Group II, under which college teachers,
scientists and nonperforming artists of exceptional ability
are extended a blanket labor certification. In that regulation
the term is defined as any field of knowledge or skill in which
colleges and universities commonly offer a degree program, although
the alien may qualify without such studies. INS is bound by
the definition in considering whether to deem second or third
EB preference applicants certified under Schedule A and exempt
from individual labor certification.
The term ''business'' should be given a broad reading that covers
virtually every aspect of commercial affairs. In the opinion
of the INS general counsel, however, business does not include
the practice of a profession.
Under the INA, the alien's exceptional ability must ''substantially
benefit prospectively the national economy, cultural or educational
interests, or welfare of the United States.'' The INS in practice
generally acts on the assumption that aliens who effectively
perform in the field of their exceptional (extraordinary) ability,
necessarily supply the required benefit to the United States.
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