Labor Certification and EB-2 Second Preference Immigration Requirements

In the United States employment-based immigration framework, EB-2 Second Preference petitions typically require a certified Form ETA-9089 Application for Permanent Employment Certification authorized by the U.S. Department of Labor (DOL). Applications filed on or after June 1, 2023, must use the DOL’s Foreign Labor Application Gateway (FLAG) system, resulting in an official Final Determination – Permanent Employment Certification Approval.
Full details are available on the DOL’s Foreign Labor Certification website.

Schedule A Occupations (Labor Certification Exemptions)
For certain highly specialized roles designated under Schedule A, a formal labor certification is not required. These occupations are pre-approved by the DOL due to a documented shortage of qualified U.S. workers.

• Group I: Registered nurses and physical therapists.

• Group II: Individuals of exceptional ability in the sciences, arts, or performing arts including university-level educators.

Petitions for Schedule A occupations must include:

• A completed but uncertified ETA-9089 (with all relevant appendices).

• A signed Final Determination.

• A valid prevailing wage determination tracking number listed in Section E, Item 1.

National Interest Waiver (NIW)
Applicants may bypass both the job offer and labor certification requirements if they can prove that their proposed work serves the national interest of the United States. NIW submissions must include:

• A completed ETA-9089 with Appendix A.

• A signed Final Determination.

Eligibility Criteria for EB-2 Classification

1. Advanced Degree Professionals

• Must hold an advanced degree (U.S. or foreign equivalent) beyond a bachelor’s, or a bachelor’s degree plus at least five years of progressive, post-degree experience in the field.

• The position offered must be professional in nature requiring at least a bachelor’s degree for entry and you must meet all listed requirements on the labor certification as of the priority date.

• Required evidence includes academic transcripts and, if applicable, employer letters verifying qualifying experience. A doctoral degree, if customary, must be documented with official academic records.

2. Persons of Exceptional Ability

• Must demonstrate a level of expertise significantly exceeding that ordinarily encountered in sciences, arts, or business.

• Evidence must satisfy at least three of the following:

  • Official academic record in the area of expertise.

  • 10+ years of full-time experience.

  • Professional license or certification.

  • Proof of high remuneration.

  • Membership in professional associations.

  • Recognition for significant contributions to the field.

  • Comparable evidence meeting regulatory standards.

Key Exemptions to Labor Certification

Schedule A Designation
As noted, these petitions bypass DOL labor certification but still require a completed uncertified ETA-9089, Final Determination, and prevailing wage details.

National Interest Waiver (NIW)
Applicants may self-petition without an employer sponsor. USCIS uses a three-prong test:

1. Substantial Merit & National Importance: The proposed endeavor must offer clear benefits beyond a single employer with national or field-wide implications.

2. Well-Positioned to Advance the Endeavor: Applicant must demonstrate relevant education, expertise, documented achievements, industry support, and a strategic plan for execution.

3. Balancing Test: Waiving labor certification must benefit the U.S. more than adhering to the standard process  often due to unique skills, economic impact, or urgent public benefit.

EB-2 Petition Process

EB-2 petitions require Form I-140, Immigrant Petition for Alien Workers.

• For standard EB-2: Filed by a U.S. employer.

• For NIW: May be self-filed by the applicant.
  If approved, the principal applicant’s spouse and unmarried children under 21 may qualify for E-21 and E-22 immigrant status.

USCIS NIW Review Principles

USCIS evaluates the totality of evidence, not isolated factors. Effective NIW cases typically include:

• Detailed descriptions of the proposed endeavor and its broader significance.

• Evidence of qualifications, prior success, and industry endorsements.

• Documentation of the endeavor’s potential to generate national economic, technological, or societal benefits.

• Independent corroboration from authoritative entities, including government agencies when possible.