Employment-Based Immigration Second Preference

EB-2 visas are the second most common employment-based immigrant visas given out of the five different types. It can be challenging to obtain one as, in most cases, it requires a U.S. employer’s sponsorship, a certified labor certification, and a list of perquisites to be met. However, it’s worth all the effort when you obtain your EB-2 visa. An EB-2 visa presents a direct path towards obtaining permanent residence status.

EB-2 visas are granted to two categories of applicants as follows:

1. Members of professions who possess an advanced degree (or equivalent).
2. Those who prove “exceptional ability” in their field in the sciences or arts, or in business, medicine, or athletics who will substantially advantage the national economy, cultural, or educational interests or welfare of the USA. 

Experienced visa attorneys at Passage Immigration Law understand how complex this process can be and are eager to help clients take the steps necessary to successfully apply for this visa. If you have questions about whether you are eligible, you should consult an immigration lawyer at (503) 427-8243, or you can schedule a consultation here.

Eligibility for an EB-2 visa

Professionals with advanced degrees and individuals of exceptional ability are two distinct categories of candidates for EB-2 status, aside from those who may be eligible for a National Interest Waiver (NIW).
 

Professionals with advanced degrees

If you hold an advanced degree, like a master’s degree or higher, and you receive a job offer from a U.S. employer, you may qualify for permanent residency in this category. The position offered to you must also require an advanced degree or its equivalent as the minimum level of education, and it is not sufficient that you have such a degree if the position also accepts applicants with lesser qualifications. 

If your diploma was obtained from a foreign institution, you must obtain an independent credential evaluation that shows your degree is the U.S. equivalent of a master’s degree or higher. If you have a bachelor’s degree but no advanced degree, you may still qualify under this category if you can show that you completed at least five years of progressive, post-degree work experience in a closely related field. What qualifies as “progressive” experience is not defined by law, but generally, you must show you had advancing levels of responsibility and knowledge in your specialty during the five years. To apply, your employer must first obtain a labor certification (“PERM”) from the U.S. Department of Labor, then submit a Form I-140 to the USCIS on your behalf. Self-petitions are not permitted unless you qualify for a National Interest Waiver (NIW).

Persons of exceptional ability

Even if you do not have the requisite advanced degree or bachelor’s degree with five years of progressive work experience, you may still qualify for an EB-2 if you are considered to have exceptional ability in your field. “Exceptional ability” here means having a degree of expertise significantly above that ordinarily encountered. It can be demonstrated by meeting at least three of the criteria set forth by the regulations, including a diploma or certificate from a school of your area of expertise, ten years of full-time related experience, a license to practice in your profession, evidence of a higher salary than others, membership in professional associations, and recognition of your achievement by others. Other comparable evidence is also accepted.

This category can be especially useful for someone who has many years of professional experience but has not completed a bachelor’s degree or someone who has a bachelor’s degree and significant achievements but does not yet have five years of progressive post-college work experience. A labor certification and a Form I-140 petition from your employer are also required for this category. Self-petitions are not permitted unless you qualify for a National Interest Waiver (NIW).

National Interest Waiver

Although all EB-2 categories require that a U.S. employer first obtains a labor certification and then files a Form I-140 immigrant visa petition on your behalf, you may be exempt from such requirements if granting you a visa would be in the “national interest” of the U.S.

To be eligible for this waiver, you must first be a professional holding an advanced degree or its equivalent or have “exceptional ability” as defined by the regulations.

You must then pass a three-prong test by showing that:

1. Your proposed endeavor has both substantial merit and national importance.
2. You are well-positioned to advance the proposed endeavor.
3. On balance, it would be beneficial to the U.S. to waive the requirement of a job offer.

Your proposed endeavor can be in a variety of fields, including business, science, health, technology, culture, or education. If you qualify under NIW exemption, you may self-petition a Form I-140 with the USCIS without a job offer from a U.S. employer, and you are also exempt from having to receive a labor certification from the U.S. Department of Labor. The NIW can also be very useful for self-employed entrepreneurs whose products or services can benefit the U.S. economy and people.

EB-2 visa process

Generally, along with this application, you must submit a PERM Labor Certificate certified by the Department of Labor. However, a NIW can replace the labor certification due to granting the visa being in the interest of the U.S. The national interest waiver is given to individuals who possess exceptional ability. The exemption must also ensure that the applicant’s employment would provide a significant advantage to the United States.

Additionally, individuals who file the NIW don’t need an employer for sponsorship and can petition themselves and submit an I-140 form on their own.

You require sponsorship from your employer if you’re not planning to submit a NIW. In this case, your employer must file a labor certification and an I-140 for you. The labor certification must state that your position in the U.S. won’t affect other people already employed in the U.S. and that your position is irreplaceable by anyone else in the country. The applicant’s family can accompany them once they’re in the process of getting their green card. Once they have obtained their green card, their family can obtain work authorization.

Whether you or your employer is filing a visa application, it’s best to check in with our experienced immigration lawyer for second preference (EB-2) to ensure all your prerequisites are in order.

How can an experienced EB-2 attorney help?

Our EB-2 visa attorneys are highly skilled at assisting clients in navigating the immigration system, from gathering the required documentation to preparing for an interview and organizing the final paperwork. Passage Immigration Law is dedicated exclusively to the practice of immigration law, and we work collaboratively with our clients to help them achieve their goals.

With offices in Portland, Oregon, Los Angeles, California, and Seattle, Washington, our seasoned immigration attorneys serve clients nationwide and can help you file your petition successfully. Contact us today at (503) 427-8243, or you can schedule a consultation here.

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