[COLUMN] The exceptional worker (EB2) category

THERE is a pathway under United States immigration law for a person of exceptional ability to be approved for permanent residence – without going through the lengthy and challenging labor certification/PERM process of proving that there are no Americans who want your job. This is commonly known as the “EB-2 category.”

You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” You must meet any requirements specified on the labor certification as applicable.

Under U.S. law, a person of exceptional ability qualifies for permanent residence if they meet certain statutory and regulatory guidelines. Those guidelines require evidence in at least three of the following categories:

  1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Documentation of the alien’s membership in associations in the field for which the classification is sought, which require outstanding achievements of their members;
  3. Published material about the alien in professional or major trade publications/journals or other major media, relating to the alien’s work in the field for which the Classification is sought.
  4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same field of specification for which classification is sought;
  5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  6. Evidence of the alien’s publication of scholarly articles in the field;
  7. Evidence of the display of the alien’s work at artistic exhibitions or showcases;
  8. Evidence that the alien has performed in a leading role for organizations or establishments that have a distinguished reputation;
  9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
  10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.

If you or someone you know, without status in the U.S., can assemble such evidence to document their status as exceptional in their field, an application to the DHS for permanent residence should be considered. This is equally applicable for persons with careers in the sciences (such as physicist, chemist, biologist, doctor, computer scientist, inventor, etc.) as it is for the arts (such as musician, artist, writer, etc.).

It is important to submit such application while the person is in the U.S. legally or if they live abroad; once the applicant is out of status here, the application – even if approved – will not put them back into legal status.

We have been successful in obtaining such status for a cellist, a Russian iconographer, a cardiologist, a graphic artist, a nuclear scientist, a painter, an inventor of computer software and many others in a wide variety of careers.

For those persons with considerable education and skills – particularly those on H-1B  visas or those who have not won the H-1B lottery – this is an option that should be considered.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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Christopher A. Kerosky, Esq. graduated from the University of California Berkeley (Boalt Hall) Law School and has practiced Immigration Law for over 25 years. For 15 years, “SuperLawyers” named him one of the top lawyers in Northern California (2006-2020; https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html). Atty. Kerosky has had an office in San Francisco since 1989. His law firm also has offices in Santa Rosa, Napa, San Rafael, Ukiah, Bishop and Los Angeles. He speaks Spanish and Polish fluently and conversational Russian and French. Since 2013, Atty. Kerosky has served as a Member of the Human Rights Commission for Sonoma County, appointed by the County Board of Supervisors to represent the 5th District. As part of his work with the Commission, Christopher helped found My American Dreams, a local nonprofit devoted to community education and advocacy for immigrants. Atty. Kerosky served as Honorary Consul for the Republic of Poland in San Francisco from 2004 to 2019 and as such, his office acted as the Polish Consulate in San Francisco. He was one of the longest serving members of the San Francisco Consular Corps. Atty. Kerosky resides with his family just outside Santa Rosa but also owns a house in the Bishop area.

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