The EB2 NIW category of green card has two types of requirements. One is the famous 3-prong system from the Matter of Dhanasar that we have extensively discussed in this blog. The other one is the general second priority employment-based green card requirement. Typically, we refer to it as “advanced degree”, because the petitioner must have a Masters or Ph.D. degree from the US or another country, as long as they can prove the equivalence.
However, having an advanced degree is not the only way that the petitioner can use to meet this general EB2 requirement. This requirement can also be met by holding a bachelor (or foreign equivalent) and five years of relevant and progressive full-time experience. Additionally, people that do not have either of these can claim (and prove) that they have exceptional abilities. In this article we will discuss how to prove exceptional ability for EB-2 NIW applications.
What the USCIS considers Exceptional: EB-2 NIW without masters or PhD
The first thing to keep in mind when discussing this topic is that the definition we may have of being “exceptional” is not necessarily what the USCIS cares about. You should not be too humble when dealing with this type of self-petitioned green cards (in fact, that is one of the top 5 mistakes to make!). USCIS has a more or less solid definition of what exceptional means to them, and that is all you should care about.
To understand what the USCIS accepts as person of exceptional ability, we can take a look at one of the most valuable resources from the agency: the Policy Manual. Specifically, we can look at its volume 6, part F, Chapter 5 to find three points the USCIS provides for the definition:
- He or she has exceptional ability in the sciences, arts, or business;
- He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and
- His or her services in one of those fields are sought by an employer in the United States
“The term exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. This standard is lower than the standard for extraordinary ability classification.” (Link to source)
POLICY MANUAL, VOLUME 6, Chapter 5
Exceptional vs Extraordinary
Even though in our day-to-day language we may not differentiate between “exceptional” and “extraordinary”, these two terms are different for USCIS. For this agency, extraordinary is a higher standard that they use when evaluating candidates for an EB-1 visa. Indeed, their definition of extraordinary is: ”One of that small percentage who have risen to the very top of the field of endeavor”. For more information on EB-1 and EB-2 National Interest Waiver similarities and differences, check this other blog post.
How USCIS decides about Exceptional Ability for EB2 NIW
The 2-step review process for Exceptional Ability
This route to get a green card under EB2 NIW without holding an MS or Ph.D. requires the petitioners to prove they have other qualifications.
The immigration agency uses what they call a 2-step review process. Under this method, they first evaluate the evidence provided by the applicant and decide if the meet the regulatory criteria (and how many). After this is done, they perform a final merits determination, in which the assess the evidence all together to determine if this high level of qualification has been met. In my view, the first step is a box-checking exercise where they review the evidence and decide which criteria were met; whereas the second step is related to the quality of the evidence as a whole.
Step 1- The regulatory criteria: how to qualify for Exceptional Ability for EB2 NIW
Below is a list that USCIS provides to qualify under this category. An applicant has to meet at least 3 of these 6 criteria:
- Official academic record showing a degree, diploma, certificate, or similar award from college, university, school or other learning institution related to area of exceptional ability.
- Letters from current or former employers showing at least 10 years of full-time experience in the occupation
- License to practice or certification for particular occupation
- Evidence of commanding higher remuneration
- Membership in professional associations
- Evidence of recognition of achievements to the industry or field
If these criteria are not relevant to the occupation, the petitioner may submit other comparable evidence. However, they also have to justify why the above criteria do not fit their professional field. In other words, you cannot just say that these do not apply to you and provide different type of proof.
Step 2 – Final Merits Determination: the quality of the evidence
Meeting at least three of the six criteria does not automatically guarantee you will qualify as an individual of exceptional ability. The USCIS officer will judge the quality of the evidence provided. According to the USCIS Policy Manual:
“The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
It is worth noting that certificates and other formal documentation contemporaneous with the petitioner’s claimed contributions may have more weight than letters prepared for the petition.
Conclusions to the 2-step process
First, of all, quality is as important as quantity! You should focus on providing high quality proof of your claims to ensure you pass the two steps in their review process. Second, as usual, the USCIS officer has the last word on the decision. If he or she believes that the claims are untrue and can articulate why, they can and will deny the petition explaining why in their denial letter.
In Conclusion, we have seen how it is possible for a green card applicant to get an EB-2 NIW approved without a doctorate or masters. Even without a bachelor! The exceptional abilities strategy is a route that may be of interest to candidates with demonstrated long experience and exceptional achievements in the field.