The EB2 visa exceptional ability subcategory is a green card for persons who have exceptional ability in the sciences, arts, or business. Under the EB2 green card petition, exceptional ability is a degree of expertise that is significantly higher than the ordinary. Professors, entertainers, and athletes are professions that can be included under EB2 green card petitions.
Under the INA §203(b)(2), 8 USC §1153(b)(2), the EB2 visa exceptional ability subcategory is part of the second preference employment-based immigrant visas where a U.S. sponsoring employer and a PERM labor certificate is required unless a National Interest Waiver is filed with it. A PERM labor certificate can also be waived if the occupation falls under Schedule A, however, a U.S. sponsoring employer will still be required. Self-sponsorship for the EB2 green card petition is only permitted when a National Interest Waiver (or a Physicians National Interest Waiver) is filed with it.
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Table of Contents
There are three main types of qualified persons under the exceptional ability subcategory of the EB2 green card petitions:
A person qualified for an EB2 green card under the exceptional ability subcategory must (1) have exceptional ability in the sciences, arts, or business and (2) their employment in the United States must substantially and prospectively benefit the economy, cultural or educational interests, or welfare of the nation. The exceptional ability under the EB2 green card petition is where a degree of expertise is significantly higher than the ordinary.
A person qualified for an EB2 green card under Schedule A Group II must (1) have exceptional ability in the performing arts, sciences, or arts, (2) have achieved widespread acclaim and international recognition by experts in their field, and (3) the person’s work during the past year and the work they will be doing in the future requires exceptional ability.
The “exceptional ability” under Schedule A Group II has a higher standard than the “exceptional ability” in the regular EB2 green card petition because it requires additional proof that the person has achieved widespread acclaim and international recognition by experts in their field.
A person qualified for an EB2 green card exceptional ability subcategory in the arts can include professional athletes who are employed by (1) a sports team that is a member of an association which has at least 6 professional sports teams whose total combined revenue exceeds $10,000,000 per year and the association must be able to govern its members conduct and regulate contests and exhibitions that their teams regularly attend, or (2) a minor league team affiliated with such an association.
The professional athlete can freely change teams by using approved PERM labor certificates or EB2 green card petitions filed by prior employers to continue pursuing their EB2 green card with new employers as long as it is within the same sport.
The EB2 green card petition under the exceptional ability subcategory has two main requirements that need to be satisfied: evidence must be provided to the USCIS to show that (1) there is job offer from a U.S. sponsoring employer if filed without a National Interest Waiver and (2) the person has exceptional ability in the sciences, arts, or business and their employment in the United States must substantially and prospectively benefit the economy, cultural or educational interests, or welfare of the nation by satisfying at least 3 of 6 criteria listed in the 8 CFR §204.5(k)(3)(ii) regulations.
For persons who have exceptional ability in the sciences or arts under Schedule A Group II EB2 green card petitions, additional evidence must be provided to satisfy at least 2 of 7 criteria listed in the 20 CFR §656.15(d)(1) to prove that the person (1) has exceptional ability in the sciences or arts, (2) have achieved widespread acclaim and international recognition by experts in their field, and (3) their work during the past year and the work they will be doing in the future requires exceptional ability.
For persons who have exceptional ability in the performing arts under Schedule A Group II of the EB2 green card petition, additional evidence must be provided to satisfy at least 2 of 6 criteria listed in the 20 CFR §656.15(d)(2) to prove that the person (1) has exceptional ability in the performing arts, (2) have achieved widespread acclaim and international recognition by experts in their field, and (3) their work during the past year and the work they will be doing in the future requires exceptional ability.
Documents Required for the EB2 Green Card (Science/Arts/Business)
The evidence provided to the USCIS for the EB2 green card petition under the exceptional ability subcategory must show a job offer from a U.S. sponsoring employer (if filed without a National Interest Waiver) and the satisfaction of at least 3 of 6 criteria listed below:
- (1)
- (2)
- (3)
- (4)
- (5)
- (6)
- Official academic record that is related to the field of exceptional ability (e.g., degree, diploma, certificate, or other similar awards from a university, college, school, or other educational institution)
- Letters from current or past employer verifying that the person has at least 10 years of full-time experience in the occupation
- Membership in professional association(s)
- License to practice the profession, or a certification for the occupation or profession
- Documents that show the person has received a salary or remuneration for work of exceptional ability (it should be compared to others doing similar work in the industry)
- The person's achievements and significant contributions to the industry or field are recognized by peers, government entities, professional or business organizations
- (1)
- Official academic record that is related to the field of exceptional ability (e.g., degree, diploma, certificate, or other similar awards from a university, college, school, or other educational institution)
- (2)
- Letters from current or past employer verifying that the person has at least 10 years of full-time experience in the occupation
- (3)
- Membership in professional association(s)
- (4)
- License to practice the profession, or a certification for the occupation or profession
- (5)
- Documents that show the person has received a salary or remuneration for work of exceptional ability (it should be compared to others doing similar work in the industry)
- (6)
- The person's achievements and significant contributions to the industry or field are recognized by peers, government entities, professional or business organizations
*** Any other comparable evidence can be provided if the 6 criteria listed above cannot be readily applied
The original statutory wording for the evidentiary requirements of the EB2 exceptional ability green card can be found in 8 CFR §204.5(k)(3)(ii).
The additional evidence provided to the USCIS for persons who have exceptional ability in sciences or arts under Schedule A Group II of the EB2 green card petition must show satisfaction of at least 2 of 7 criteria listed below:
- (1)
- (2)
- (3)
- (4)
- (5)
- (6)
- (7)
- The person has received internationally recognized awards or prizes for achieving excellence in their field of expertise
- The person has a membership in an international association that requires members to have outstanding achievement in their area of expertise as a condition to become a member
- There is published material about the person and the person's work in professional publications
- The person has served as a judge of other people’s work (individually or on a panel)
- The person has produced original scientific or scholarly research contributions that have major significance to their area of expertise
- The person's authorship of published scientific or scholarly articles are shown in international professional journals (or professional journals that have international circulation)
- The person's work has been displayed at artistic exhibitions in at least 2 countries
- (1)
- The person has received internationally recognized awards or prizes for achieving excellence in their field of expertise
- (2)
- The person has a membership in an international association that requires members to have outstanding achievement in their area of expertise as a condition to become a member
- (3)
- There is published material about the person and the person's work in professional publications
- (4)
- The person has served as a judge of other people’s work (individually or on a panel)
- (5)
- The person has produced original scientific or scholarly research contributions that have major significance to their area of expertise
- (6)
- The person's authorship of published scientific or scholarly articles are shown in international professional journals (or professional journals that have international circulation)
- (7)
- The person's work has been displayed at artistic exhibitions in at least 2 countries
The original statutory wording for the evidentiary requirements in the sciences or arts under Schedule A Group II EB2 green card petitions can be found in 20CFR §656.15(d)(1).
The additional evidence provided to the USCIS for persons who have exceptional ability in the performing arts under Schedule A Group II of the EB2 green card petition must show satisfaction of at least 2 of 6 criteria listed below:
- (1)
- (2)
- (3)
- (4)
- (5)
- (6)
- The person has received internationally recognized awards or prizes for achieving excellence in their field of expertise
- There is published material about the person or published material by the person, which can include critical reviews or articles that are in major newspapers, trade journals, and periodicals
- The person received earnings that show the level of their ability
- Playbills and star billings
- Attestations to the outstanding reputation of the concert halls, theaters, nightclubs, and other establishments where the person has appeared or is scheduled to appear in
- Attestations to the outstanding reputation of the orchestras, theaters, repertory companies, ballet troupes, or other organizations which the person has performed for in a leading or starring position during the past year
- (1)
- The person has received internationally recognized awards or prizes for achieving excellence in their field of expertise
- (2)
- There is published material about the person or published material by the person, which can include critical reviews or articles that are in major newspapers, trade journals, and periodicals
- (3)
- The person received earnings that show the level of their ability
- (4)
- Playbills and star billings
- (5)
- Attestations to the outstanding reputation of the concert halls, theaters, nightclubs, and other establishments where the person has appeared or is scheduled to appear in
- (6)
- Attestations to the outstanding reputation of the orchestras, theaters, repertory companies, ballet troupes, or other organizations which the person has performed for in a leading or starring position during the past year
The original statutory wording for the evidentiary requirements in the performing arts under Schedule A Group II EB2 green card petitions can be found in 20 CFR §656.15(d)(2).
The total time an EB2 green card takes is consisted of the processing time for (1) the PERM labor certification (ETA Form 9089) with the U.S. Department of Labor if filed without a National Interest Waiver or a Physician’s National Interest Waiver (or does not fall under the Schedule A exemption), (2) the EB2 green card petition (Form I-140) with the USCIS, and (3) the change of status when the person’s priority date becomes current by filing the Form I-485 application if adjusting status within the United States or the DS-260 application if doing consular processing at a U.S. consulate or embassy located outside the United States.
Factors that influence the EB2 green card petition processing time usually include but is not limited to where the person (or spouse) was born, if there was any Request for Evidence (“RFE”) issued, audits of PERM recruitments, and the caseload of the DOL, USCIS service center, and the U.S. consulate or embassy.
A rough estimate for the PERM labor certification is around 6 to18 months depending on if the U.S. sponsoring employer is audited for the recruitment process. The PERM labor certificate is a process with the U.S. Department of Labor where the U.S. employer will have to show an effort in trying to hire available and qualified U.S. workers for the job position offered to the foreign worker. The purpose of the PERM labor certification is to make sure that hiring foreign workers will not harm U.S. workers. The PERM labor certification process includes posting job advertisements on certain recruitment platforms and interviewing the U.S. workers who respond to those job postings. An approved PERM labor certification usually takes around 6 to 12 months to complete.
There are 3 exceptions that allow the PERM labor certificate to be waived under the EB2 green card petition: the PERM labor certificate is not required when the EB2 green card petition is filed with a (1) National Interest Waiver (NIW), (2) Physicians National Interest Waiver (PNIW), or (3) it falls under Schedule A.
Occupations under Schedule A are pre-certified by the U.S. Department of Labor as having a shortage in available and qualified U.S. workers which means that hiring foreign workers in those certain occupations will not harm U.S. workers. Current occupations under Schedule A include 2 groups: (1) Group I: professional nurses and physical therapists, and (2) Group II: persons of exceptional ability in the performing arts, sciences, or arts.
A rough estimate for the Form I-140 petition is around 6 to 12 months. However, premium processing (Form I-907) is available for the Form I-140 petition part of the EB2 green cards. Premium processing is an optional expedited service where the USCIS guarantees that the case will be processed within 15 calendar days (not business days). When a notice of intent to deny (NOID) or a request for evidence (RFE) is issued, a new 15 calendar day will start when the USCIS receives a response from the applicant. If the USCIS fails to process within the time frame, a refund of the service fee will be given and the case will continue to be expedited. Please note that USCIS’s guaranteed response may be an approval notice, denial notice, notice of intent to deny (NOID), request for evidence (RFE), or open an investigation for fraud or misrepresentation.
The current premium processing fee for the EB2 green card is $2500 USD and it can be requested when the original petition is submitted to the USCIS or an upgrade to premium processing can be done when the case is pending.
Priority Date for Status Change
There are two parts in the processing time for a change of status: (1) the time to when the person’s EB2 green card petition priority date becomes current which can range from no wait time to multiple years depending on what country the person or their spouse was born in, and (2) the time to process Form I-485 for adjustment of status or DS-260 for consular processing which a rough estimate can range from 4 to 15 months.
After the USCIS approves the EB2 green card petition (Form I-140), the person will then wait for their priority date to become current to apply for a change of status into a green card holder (lawful permanent resident). The priority date for EB2 green card petitions can be the date that the USCIS receives the immigration petition (Form I-140) OR the date that the U.S. Department of Labor (DOL) receives the PERM labor certification (ETA Form 9089) request. For people from most countries, their EB2 green card petitions will usually have a current priority date at the time of filing (or a priority date with a relatively short wait time to become current). For people from China and India, the wait time for their priority date under an EB2 green card petition to become current is relatively long with this green card visa category.
The reason as to why there are different wait times for a priority date to become current is due to the total limit on how many green cards (immigrant visas) can be given out each year and a separate limit on how many green cards are allotted for each country. For people born in certain countries (based on country of birth and not country of citizenship) such as China or India, there is usually not enough available visas (green cards) each year due to high-volume immigration from those countries so they would have to wait for their visas (green cards) to become available which would be based on when their priority date becomes current in the monthly Visa Bulletin released by the U.S. Department of State (DOS).
Cross-Chargeability
Cross-chargeability is often used when the person’s country of birth has a visa backlog problem but the country of birth for the person’s spouse does not. The person born in the country that has a visa availability backlog problem will use the cross-chargeability rule to be charged against (use the quota of) the spouse’s country instead (this usually results in obtaining the green card much earlier). For example, a person born in China (which usually has a visa availability backlog problem) with a spouse born in South Korea (which does not have a visa availability backlog problem): both of them can use the quota of South Korea instead of China when they apply to change into their green card visa status. It does not matter which person is the primary person pursuing the green card petition.
Minor children can be charged to either parent’s country of birth, or in some circumstances the child can be charged to a third country that neither parent was born in or had residence in when the child was born. For example, both parents were born in Japan but their child was born in China during a temporary vacation there: the child can be charged against the quota of Japan. Under most circumstances, derivative beneficiaries (such as the spouse or children of green card visa applicants) cannot be eligible to apply to change into their green card visa status before the principal green card visa applicant.
Please note that parents cannot use their minor children’s country of birth under the cross-chargeability rule. For example, both parents were born in China and their child was born in Japan. The parents cannot use Japan which is their child’s country of birth and would still need to use China which is their own country of birth to wait for their green card.
Changing into the green card visa status (the lawful permanent resident immigrant visa status) is the final step in being able to work freely and live permanently in the United States. There are two ways to obtain the green card visa status: adjustment of status and consular processing.
Adjustment of status is usually for a person who is already in the United States with a valid nonimmigrant visa status and has maintained a lawful visa status throughout their time within the United States. On the other hand, consular processing is for a person living outside the United States or for a person who is ineligible in adjusting their status in the United States.
For a person who is residing overseas (outside the United States) or a person who is ineligible for an adjustment of status with the Form I-485 application, consular processing must be done to obtain the EB2 green card visa status (i.e., lawful permanent resident). Consular processing usually involves the person attending an in-person interview at the U.S. consulate or embassy located in their home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”
After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport). In other words, the person would have to physically enter the United States after their interview approval as the final step for their EB2 green card visa status to be activated.
For a person who is already in the United States with a valid nonimmigrant visa, there are usually two options available to obtain the EB2 green card visa status (Lawful Permanent Resident):
(1) Adjustment of Status: this is the more commonly chosen option where the person would file a Form I-485 application to adjust their status without leaving the United States. The person would attend an in-person interview at a local USCIS office in the United States and the interview approval would serve as the final step for their EB2 green card visa status to be activated.
The adjustment of status application (Form I-485) can be filed when the person’s priority date becomes current in the Visa Bulletin which means that there are no backlogs in visa availability for the person’s country of birth (not country of citizenship). This can happen while the green card petition (Form I-140) is still pending (i.e., before approval) with the USCIS or after the green card petition (Form I-140) is approved by the USCIS. It can also happen in concurrent filings (Form I-140 and Form I-485 sent together) where the person’s priority date is already current at the time of filing the green card petition (Form I-140) to the USCIS.
When the adjustment of status application (Form I-485) is filed, applications for the employment authorization document (Form I-765, commonly known as the “EAD card”) and the travel document (Form I-131, commonly known as “Advance Parole”) can also be filed at the same time.
The EAD card allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.
Advance parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advance parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.
(2) Consular Processing: this is usually chosen if a person cannot show that they have maintained their lawful visa status in the United States or when the processing time for consular processing is much faster than the adjustment of status.
When the EB2 green card petition (Form I-140) is approved, the person’s spouse and dependent children (unmarried and under the age of 21) may be eligible to enter the United States under the E-21 or E-22 immigrant status, respectively.
The exceptional ability subcategory of the EB2 green card petition (regular) is usually filed with a National Interest Waivers where the person self-sponsors their own green card by showing that they have exceptional ability in the sciences, arts, or business and they are qualified to make contributions that can substantially benefit the United States as a nation. For persons who file under the Schedule A Group II EB2 green card petition, they must additionally prove that they (1) have exceptional ability in the performing arts, sciences or arts, (2) have achieved widespread acclaim and international recognition by experts in their field, and (3) their work during the past year and the work they will be doing in the future require exceptional ability.
Regular EB2 green card petitions require a U.S. sponsoring employer and cannot be self-sponsored which means the person cannot start and pay for the EB2 green card petition by themselves. However, the EB2 green card petition under the exceptional ability subcategory can be self-sponsored when a national interest waiver or a physician’s national interest waiver (physicians usually file with the EB2 advanced degree subcategory instead) is filed with it.
For people who qualify for an EB2 green card petition under the exceptional ability subcategory, there is a possibility that the person also qualifies for an EB1 green card petition (that requires a higher standard in eligibility) which includes: (1) persons who are nationally or internationally recognized for their extraordinary ability in the sciences, arts, education, business, or athletics (EB1a green card), (2) professors or researchers who are internationally recognized as outstanding in their academic field (EB1b green card), or (3) executives or managers of multinational companies (EB1c green card). EB1 green card petitions do not require a PERM labor certification and the EB1a green card subcategory (for aliens of extraordinary ability) does not even require a specific U.S. employer for the petition just proof that the person will continue to work in their field of expertise.
Other alternative green card petitions that require a similar or slightly higher standard than the EB2 green card petition include: (1) EB2 green card petitions under the advanced degree subcategory, (2) EB2 green card petitions under Schedule A Group II, or (3) EB2 green card petitions filed with a National Interest Waiver (or a Physician’s National Interest Waiver). The advanced degree EB2 green cards are for persons who have at least a master’s degree and have a job offer for a position that requires that specific type of degree. The Schedule A Group II EB2 green cards are for persons who have exceptional ability in the performing arts, sciences or arts. A national interest waiver can be filed with an EB2 green card petition when the person qualifies for an EB2 green card and is also qualified in being able to make contributions that substantially benefit the United States as a nation. A physician’s national interest waiver can be filed with an EB2 green card petition for certain doctors who agrees to provide healthcare services in certain U.S. government designated facilities or medical personnel shortage areas.
For people who do not qualify for the EB2 green card petition yet, the closest alternative would be the commonly used professionals subcategory of the EB3 green card petitions (Professional, Skilled, Other Workers). Professionals under the EB3 green card petition are required to (1) be a member of a profession, (2) have at least a bachelor’s degree (or its foreign equivalent), and (3) a job offer that requires a bachelor’s degree as entry into the occupation. Skilled workers under the EB3 green card petition are required to have qualifications to perform a job that requires at least 2 years of training or work experience. Other workers under the EB3 green card petition are only required to be able to perform an unskilled job that requires less than 2 years of training or work experience. Similar to EB2 green card petitions, the EB3 green card petitions also generally require a sponsoring U.S. employer and a PERM Labor Certification.
Filing an EB2 and EB3 Green Card Petition at the Same Time
In most cases, people who qualify for the EB2 green card petition is likely to also qualify as a professional under the EB3 green card petition. In some limited circumstances, it may be beneficial for the person to pursue an EB2 green card petition and an EB3 green card petition at the same time. For example, a person qualified for an EB2 green card petition may want to file an extra EB3 green card petition when the visa bulletin shows the EB3 visa category is having less visa availability backlog problems.
If you have an EB2 green card (Exceptional Ability) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the EB2 green card is the appropriate immigrant visa category for the client’s (or the client’s beneficiary’s) professional background. We will work closely with our client to prepare a convincing case for their (or it’s) EB2 green card petition and we will also strategize on how the EB2 green card petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an EB2 green card petition due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Fill out the form (with some basic information on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment online
- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued