If a person does not have a US Master's degree or non-US education equivalent to a US Masters; or a person does not have a four-year US Bachelor's degree or non-US education equivalent to a US Bachelor's, plus 5 years of post Bachelor's work experience, then the person needs to meet the "exceptional ability" criteria which is in the regulations and also the USCIS policy manual. The policy manual is linked here -
The "exceptional ability" criteria requires meeting 3 of the following -
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"The initial evidence must include at least three of the following six types of evidence listed in the regulations:
--- An official academic record showing that the beneficiary 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;
--- Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
--- A license to practice the profession or certification for a particular profession or occupation;
--- Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
--- Evidence of membership in professional associations; and
--- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations."
I am on O1A, and possibly my employer will file EB1B by the end of this year. I am from India. Now EB1 dates have moved to Feb 22, can I file NIW and would it be any beneficial to me ?
Is this applicable for Indian Origin , Software professionals working in US at leadership positions with Masters degree from US or they are stuck in EB2 queue?
EB-2 NIW is still "EB-2" - that is, the wait time is the same for the Visa Bulletin. That does not mean that EB-2 NIW has no value. It is a self-petition (or it can be), and so it is attached to you. That means if you are an Indian H-1B waiting for your priority date, you can change employers and you won't need a new PERM at the new employer, just an H-1B transfer. This is valuable if you want to change employers voluntarily or if you get laid off.
Also, EB-2 NIW can potentially help position you for a future EB-1A.
So while it is not a 'loophole' around the Visa Bulletin cut-off dates, there are still advantages.
Having technical or professional certifications may be useful to show "exceptional ability" if that is one of the elements of the case, that is, if the candidate does NOT have a Master's degree or Bachelor's + 5 .
Having technical or professional certifications may be useful to show "well-positioned" for Prong 2 of Dhanasar. But I don't think it is generally considered very impactful.
Do you know of any case law that says what is sufficient for exceptional ability education requirements?
If a person does not have a US Master's degree or non-US education equivalent to a US Masters; or a person does not have a four-year US Bachelor's degree or non-US education equivalent to a US Bachelor's, plus 5 years of post Bachelor's work experience, then the person needs to meet the "exceptional ability" criteria which is in the regulations and also the USCIS policy manual. The policy manual is linked here -
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
The "exceptional ability" criteria requires meeting 3 of the following -
###
"The initial evidence must include at least three of the following six types of evidence listed in the regulations:
--- An official academic record showing that the beneficiary 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;
--- Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
--- A license to practice the profession or certification for a particular profession or occupation;
--- Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
--- Evidence of membership in professional associations; and
--- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations."
Robert, a degree should be obtained in the USA or can be a foreign equivalent?
For qualifying for EB-2, a person should have --
(i) a US Master's or foreign equivalent; or
(ii) US Bachelor's or foreign equivalent plus 5 years of post-Bachelor work experience; or
(iii) Evidence of "exceptional ability" as defined by the regulations.
There is no requirement that any education is required to be US education.
Hi Robert - this is all super helpful. Can you point me to the regulation please for what qualifies as "exceptional ability"? Thank you!
The USCIS policy manual is probably the most useful thing to review. The relevant regulations are cited. See: https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
Hello,
I am on O1A, and possibly my employer will file EB1B by the end of this year. I am from India. Now EB1 dates have moved to Feb 22, can I file NIW and would it be any beneficial to me ?
EB2 NIW is not generally useful to someone born in India who is approved for EB1B. Seems like you are in good shape.
Is this applicable for Indian Origin , Software professionals working in US at leadership positions with Masters degree from US or they are stuck in EB2 queue?
As far as I know it will still be the regular EB 2 queue for Indian nationals.
EB-2 NIW is still "EB-2" - that is, the wait time is the same for the Visa Bulletin. That does not mean that EB-2 NIW has no value. It is a self-petition (or it can be), and so it is attached to you. That means if you are an Indian H-1B waiting for your priority date, you can change employers and you won't need a new PERM at the new employer, just an H-1B transfer. This is valuable if you want to change employers voluntarily or if you get laid off.
Also, EB-2 NIW can potentially help position you for a future EB-1A.
So while it is not a 'loophole' around the Visa Bulletin cut-off dates, there are still advantages.
This would be on top of a masters degree
A Master's degree is required for EB2 NIW.
Or a Bachelor's + 5 years of post-Bachelor's work experience.
Or "Exceptional Ability."
How much benefit does having certifications to prove expertise in an emerging technology area benefit the NIW application?
Having technical or professional certifications may be useful to show "exceptional ability" if that is one of the elements of the case, that is, if the candidate does NOT have a Master's degree or Bachelor's + 5 .
Having technical or professional certifications may be useful to show "well-positioned" for Prong 2 of Dhanasar. But I don't think it is generally considered very impactful.