Exceptional ability is defined as “significantly above that normally encountered.” Evidence is required that meets at least three of seven criteria set by USCIS, which may include:
- academic records,
- professional licenses,
- recognition in the particular field,
- letters that attest to the beneficiary’s experience,
- professional association memberships,
- or exceptional salary.
In either of the first two cases, the PERM process is required. This is a Labor Certification process where the U.S. Department of Labor (DOL) requires a market test be performed in order to prove there exist no qualified legal U.S.-based workers for the position in question.
However, the following third option (National Interest Waiver) provides an exception to the PERM requirement.
Route 3: National Interest Waiver (NIW)
An alternative path to an EB2 Green Card is in the case of an individual who requests the usual Labor Certification be waived because it is in the interest of the United States.
In other words, the job offer requirement can be disregarded if it can be proved that it is in the “national interest.” In this instance, the job offer and Labor Certification may both be waived, which means the individual does not require a job offer and may petition for the EB2 directly.
NIW cases can be preferable to other employment-based green card options, however, they tend to be complex and involve extensive scrutiny by USCIS. For this reason, anyone considering this route must speak to an experienced immigration attorney before starting any application process.
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