Employment Based Immigration – Second Preference Immigrants

There are two types of second preference petitions, one for advanced degree professionals, and another for immigrants of exceptional ability. In most cases, (but not all), a second preference immigrant will require a labor certification. (Section C. below discusses the exceptions to this.)

  1. Advanced Degree Professionals
    Immigrants can qualify for a second preference visa if they have a job offer for a position which requires an advanced degree and have an advanced degree. An advanced degree is a master’s or professional degree or, arguably, any foreign equivalent which qualifies as higher than a bachelor’s degree in the U.S. Immigrants may also qualify for a second preference visa if they have a Bachelor’s degree and five years experience in the field.
  2. Exceptional Ability in the Field
    Immigrants can also qualify for a second preference visa if they can prove they have exceptional ability in their chosen field. Evidence of exceptional ability can include an official record of degree from institution of higher learning, recognition of achievements in field by government entities, professional business organizations and peers, membership in associations requiring excellence in a field, or at least ten years full-time experience in the field which can be proven by letters from employers.
  3. Second Preference Aliens Who Do Not Need a Labor Certification
    There are two ways potential immigrants in the second preference can avoid the labor certification process:

    1. A “national interest” waiver of the labor certification requirement, orThe first way an intending immigrant can avoid the labor certification process is to prove that their employment in the U.S. is in the “national interest” This is called a national interest “waiver” of the labor certification requirement. An intending immigrant’s employment will in the U.S. national interest if they can demonstrate that their presence here will:
      • improve the health of U.S. workers,
      • improve the economy,
      • improve the environment,
      • improve the wages or working conditions of U.S. workers,
      • improve education,
      • improve health care,
      • result in more affordable housing for young and/or older, poorer U.S. workers, or
      • if an interested U.S. governmental agency requests their presence.

      The term “national interest” is very broad. Other types of work, i.e. work which would aid the U.S. military, may also be in the national interest. For further analysis of this issue, please contact us.

    2. Under the Department of Labor’s Schedule A, Group I (physical therapists and nurses) or Group II (aliens of exceptional ability in the sciences and arts). These are discussed, in turn, below.
      • Exempted from Labor Certification Under the Department of Labor’s Schedule A, Group I (Physical Therapists and Nurses) or Group II (Aliens of Exceptional Ability in the Sciences and Arts).
      • A second preference immigrant can also be exempted from the labor certification process under the Department of Labor’s Schedule A, Group I(physical therapists and nurses) or Group II (aliens of exceptional ability in the sciences and arts). To qualify under Group II, an intending immigrant must provide documentation of their abilities including, receiving international awards or prizes, publications of their work or discussions of their work in professional publications, original research of major significance and/or membership in international organizations which require outstanding achievement.
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