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Persons of exceptional ability (EA) can qualify for green cards under the employment-based 2nd preference (EB-2) category.

People often confuse this with the EB-1 extraordinary ability category (aka “Einstein visas”).

In fact, the criteria for getting a green card under the EB-2 EA category are far less onerous than what is required under the EB-1 category.

However, unlike the EB-1 category, a job offer is required.

An employer need not go through the PERM labor certification process for such an employee.

A person of exceptional ability must substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States because of his or her exceptional ability in the sciences, arts, or business.

The person must also have a job offer from a U.S. employer to provide services in the sciences, arts, professions, or business.

The regulation at 8 CFR 204.5(k)(2) defines exceptional ability in the sciences, arts, or business as having a degree of expertise significantly above that ordinarily encountered.

You must be able to show exceptional ability in the sciences, arts, or business.

Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

You must meet at least three of the criteria below.*

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

8 CFR 204.5(k)(2)

(k) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.

204.5(k)(1)

(1) Any United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(2) of the Act as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien’s behalf, may be the petitioner.

204.5(k)(2)

(2) Definitions. As used in this section: Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Profession means one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

204.5(k)(3)

(3) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.

204.5(k)(3)(i)

(i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:

204.5(k)(3)(i)(A)

(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or

204.5(k)(3)(i)(B)

(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

204.5(k)(3)(ii)

(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

204.5(k)(3)(ii)(A)

(A) 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;

204.5(k)(3)(ii)(B)

(B) 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;

204.5(k)(3)(ii)(C)

(C) A license to practice the profession or certification for a particular profession or occupation;

204.5(k)(3)(ii)(D)

(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

204.5(k)(3)(ii)(E)

(E) Evidence of membership in professional associations; or

204.5(k)(3)(ii)(F)

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

204.5(k)(3)(iii)

(iii) If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

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