EB-2

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Alycia Moss of Moss Immigration effective July 1, 2023 has joined Hawley Troxell law firm. She will continue practicing in Coeur d’Alene (608 Northwest Boulevard, Suite 300, Coeur d’Alene, ID 83814) and Driggs, adding Boise and Yakima to her roster.

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Permanent Visas

Advanced degrees and exceptional ability

Approved labor certification applications are required for EB-2 Visas because one goal of the immigration laws is to ensure that employment-based immigration does not adversely affect the wages and working conditions of citizens and resident aliens already in the United States. However, there is an option to apply for an exemption from this with under the National Interest Waiver (NIW) (discussed below). The employer must demonstrate that U.S. workers are not available, and that the particular alien worker meets the job requirements. The certification process is to ensure that the hiring of such alien workers would not undercut the wages and working conditions of U.S. workers similarly employed.

1. Advanced Degree:

The job offer must require an advanced degree, which is defined as “any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate.” And if the specialty “customarily” requires a doctoral degree, then the foreign national must have earned a doctoral degree, and USCIS generally will not consider a combination of education and experience to be equivalent to a doctorate. As an alternative to the advanced degree, a United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. But, mere possession of an advanced degree is not sufficient for establishing an individual’s eligibility. This classification requires the individual to be a professional, meet all requirements to for the positions, and the industry as a whole and the position typically requires the degree.

2. Physician National Interest Waiver (PNIW):

This provides an alternative pathway for clinical physicians who work or will work in a federally designated underserved area or at a Veterans Affairs (VA) facility to achieve permanent residence. A PNIW is different from a clinical J-1 waiver. Both primary care and specialty physicians can self-petition for a PNIW. The Physician must show qualifying employment already completed at the time of filing and/or to be completed after filing (for example, full-time employment contract or a VA commitment letter or evidence of solo practice).

3. Exceptional Ability in the Sciences, Arts, or Business:

These are individuals who will provide services in the sciences, arts, or business with exceptional ability, which means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” The individual’s services should substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. An athlete may, however, qualify as an individual with exceptional ability in the arts, even though “sports do not require high academic or mental preparation but primarily physical dexterity, enhanced by training an experience,” because athletes “are basically entertainers.

4. NIV (National Interest Waivers):

Any individual whose services in the sciences, arts, professions, or business are deemed to be in the national interest can get a waiver of having a job offer and a labor certification. The three requirements are: (1) showing that the proposed endeavor has both substantial merit and national importance; (2) the individual is well positioned to advance the proposed endeavor; and (3) it is beneficial to the U.S. to waive the requirements of a job offer and labor certification. We recommend that our clients always self-petition when possible, because an NIW based on the contribution to an industry, and not specific to a particular employer, remains valid even if there are changes to the employment arrangement.

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Permanent Visas