The Road Less Traveled: EB-2 Exceptional Ability

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The amount of time it takes to obtain an employment-based green card varies drastically. The foreign worker’s employment-based classification, “priority date,” and country of birth will determine whether the wait is measured in months, years or decades. Applicants from high-demand countries like India or China applying for classification as a “professional,” “skilled worker” or “other worker” (colloquially referred to as “EB-3”) may have a twenty to fifty year wait, based on current supply & demand of immigrant visas. S/he may be able to shave years or even decades from the wait by “upgrading” to an “EB-2” case and many (particularly Indian nationals) opt for the upgrade to try and shorten the wait.

EB2 classification provides immigrant visas to foreign nationals who are members of certain professions holding “advanced degrees” or possess “exceptional ability” in their field. INA § 203(b)(2). Most EB-2 cases are filed based on advanced degree making exceptional ability the much less traveled path to an EB-2 green card.

What is Exceptional Ability?

EB-2 exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” [Emphasis added.] See, 8 CFR § 204.5(k)(2). The Immigration & Nationality Act (INA) allocates immigrant visas to foreign nationals who “because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.” INA § 203(b)(2)(A).

How Does One Qualify for EB2 Exceptional Ability?

The I-140 petitioner must be able to demonstrate (1) how the beneficiary’s expertise is “significantly above” what is normally encountered in the field (in part, by meeting some regulatory criteria); (2) that the beneficiary’s exceptional ability will provide a substantial national benefit; and (3) the job described in the approved Labor Certification (ETA Form 9089) requires, at minimum, a worker of exceptional ability. To determine whether the beneficiary is “significantly above” his/her peers, USCIS uses the two-step analysis articulated in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) and subsequently adopted by the Adjudicator’s Field Manual (AFM) Chapter 22.2. The “Kazarian two-step” requires USCIS to first determine “whether the petitioner… has submitted the required evidence that meets the parameters for each type of evidence” as required by regulation. For exceptional ability cases, the petitioner needs to document at least three of the criteria listed at 8 CFR § 204.5(k)(ii). Then, USCIS conducts “a final merits determination” of all the evidence.

The final merits determination is when USCIS looks at the totality of the evidence to determine whether the beneficiary is actually someone who possesses “a degree of expertise significantly above that ordinary encountered” in the relevant field that will provide substantial benefit to the U.S. and the proffered position requires a worker with exceptional ability, notwithstanding the EB-3 level education and experience requirements mentioned in the certified labor. How to document a beneficiary’s exceptional ability can be subjective and will vary from case-to-case. In addition to deciding whether to file an EB-2 exceptional ability case, one must decide when to file.

Practice Pointer: Providing “evidence of recognition for achievements and significant contributions to the industry or field” pursuant to 8 CFR § 204.5(k)(ii)(F) is probably the most important regulatory criterion since it essentially helps meet both parts of the Kazarian two-step analysis.

When to File

As a practical matter, an EB-2 I-140 based on exceptional ability should be filed after the petitioner has secured an EB-3 I-140 approval in most cases. Presumably, the underlying labor certification would have been filed with EB-3 requirements. It is safer to first obtain an I-140 approval with EB-3 classification then later submit a new I-140 petition with evidence of exceptional ability to upgrade to EB-2.

Distilling the Facts and Presenting the Case to USCIS

Determining what the beneficiary has contributed or achieved in the relevant field and whether documentation exists to support that claim is critical at the outset of the case. “Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations” is probably the most important documentation in an exceptional ability filing. 8 CFR § 204.5(k)(ii)(F).

Practice Pointer: There should be a clear connection between the job duties in the underlying labor certification and the foreign worker’s exceptional ability. After all, the employer must not only show that the foreign worker possesses exceptional ability, but also that the job itself requires, at minimum, a worker with exceptional ability. USCIS could deny an exceptional ability filing if the foreign worker’s achievements / contributions were something unrelated to the job listed in the labor certification.

The petitioner needs to be able to clearly articulate the beneficiary’s achievements and contributions to determine what makes him/her exceptional, whether it is related to the job and how it can be proven. Sometimes, a beneficiary will provide job duties to describe their exceptional ability. But it is not enough that a software developer developed software. Did s/he develop a particular software program that is noteworthy in some significant way? Accomplishments are what happen when job duties are performed exceptionally well and a strong case would provide detailed information and documentation of such accomplishments.

Practice Pointer: Ask the beneficiary to describe what they have accomplished. Why is it significant? How does it distinguish him/her from what others do in his/her field? Who benefited and how? Once you have an understanding of what the beneficiary accomplished (1) confirm what evidence you can get to support their claim(s) and (2) determine whether there is a clear nexus between the job described in the labor and the contributions / achievements related to the foreign worker’s exceptional ability.

Best Evidence

As mentioned, USCIS seems to treat 8 CFR § 204.5(k)(ii)(F) to decide whether the final merits determination of Kazarian has been satisfied. The author has received Requests for Evidence (RFEs) for exceptional ability filings where USCIS acknowledged that the petition satisfied three or more regulatory criteria but still wanted additional evidence where 8 CFR § 204.5(k)(ii)(F) was not met. The I-140 Standard Operating Procedures (SOP) manual says highest quality evidence is documentation of accomplishment that is contemporaneously dated with the achievement.

In many cases, the beneficiary has achieved something significant while working for the I-140 sponsoring employer. To satisfy 8 CFR § 204.5(k)(ii)(F), the petitioner should definitely provide a letter explaining the beneficiary’s exceptional ability (and why such ability is required for the job described in the underlying labor). But the petitioner’s letter alone may not be sufficient. The beneficiary will also need to get similar evidence from “peers, governmental entities, or professional or business organizations.” The more people willing to explain the beneficiary’s accomplishments in writing, the more likely that the accomplishment will be viewed as “exceptional” by USCIS.

Practice Pointer: Practitioners need to clearly understand what is “normal” in a particular field before considering whether the beneficiary’s expertise rises to a degree that is “significantly above” that occupational baseline. A good starting point would be to look at the Standard Occupation Classification (SOC) Code assigned to the position in the certified labor and review the generic job duties for the SOC Code in O*NET (www.onetonline.org).

Beneficiaries and their employers often ask whether they have provided enough evidence to prove exceptional ability. It is important to remember is that USCIS weighs the totality of the circumstances and, while some evidence carries more weight than others, the preponderance of the evidence is the relatively low evidentiary threshold that must be met. Nevertheless, it is important to balance the nature of the beneficiary’s exceptional ability with the requirements of the green card job and the amount of evidence that can be produced. As a whole, the evidence should be in the form of credible and probative documentation that shows a lay person why this person and this job are exceptional, that there will be a national prospective benefit, and that the green card job requires someone of that caliber.

Reprinted with permission.


About The Author

Kevin J. Andrews, Esq. Kevin J. Andrews, Esq. is an immigration attorney in the Special Projects / NIW Department at the Murthy Law Firm. He has worked on a variety of complex and unusual immigration matters involving a variety of immigrant and nonimmigrant issues, including nunc pro tunc petitions, I-140 revocations & I-485 denials, I-9 & public access file (PAF) compliance, DOL & FDNS investigations, visa assistance issues, and more. Kevin has also written several articles for MurthyDotCom on a variety of employment-based immigration topics and is one of the attorneys at the firm who works on EB2 I-140 filings based on exceptional ability.


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