By Simone Williams
What is the EB-2 visa?
The EB-2 visa is an immigrant visa category designed for professionals with advanced degrees and exceptional abilities in science, arts or business. To become a holder of an EB-2 category visa, a foreign national is required to have a job offer from a U.S. employer with an approved labor certification (LCA) issued by the U.S. Department of Labor (DOL). The exception to this rule is if the foreign national is eligible for a National Interest Waiver; and in that case, he/she may self-petition. Visa holders in this category are eligible for obtaining green cards based on the performed work. The family of EB-2 visa holders, including spouse and children under the age of 21, may be admitted to the United States in E-21 and E-22 status. While applying for permanent resident status, the spouse of an EB-2 visa holder is eligible to apply for an Employment Authorization Document (EAD).
Eligibility EB-2 Criteria
The following persons are eligible for EB-2 category:
– Foreign nationals that are advanced degree professionals;
– Foreign nationals of exceptional ability in the sciences, arts, or business; or
– Foreign nationals that are eligible for a “National Interest Waiver”.
Advanced degree
To be eligible for this visa subcategory, the first requirement is to have an advanced degree from an accredited university. “Advanced degree” means any degree above a baccalaureate – M.A., M.S., M.E., M.D., Ph.D., J.D. However, as United States Citizenship and Immigration Service (USCIS) states, the baccalaureate degree “followed by at least five (5) years of progressive experience in the specialty” is considered the equivalent to a master’s degree. Because the work experience must be progressive in nature, the petitioner should be able to demonstrate that their professional responsibilities and level of knowledge have progressively increased over the course of the required five years.
If the foreign national obtained a degree outside the United States, the degree must be approved as equivalent to a U.S. degree by educational evaluation agencies approved by USCIS.
To apply for EB-2 advanced degree visa subcategory, a foreign national must provide official academic records documenting their qualifying degree, and/or documentation of applicable work experience in the field. The second requirement is that advanced degree must be related to the field in which the foreign individual will be working. This can be documented by providing descriptive statements of past and future work, and company information and reports.
Exceptional Ability
To be eligible for this visa subcategory, a foreign national must be able to show exceptional ability in the science, arts, or business. Exceptional means an ability significantly above the ordinary encountered in sciences, arts, or business.
To apply for exceptional ability visa subcategory, the foreign national must meet at least three of the following criteria (8 CFR d 204.5(k)(3)(ii)):
– “Official academic record showing [possession of] a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;”
– Letters documenting at least 10 years of full-time experience in the occupation;
– “A license to practice the profession or certification for a particular profession or occupation;
– Evidence [of having] commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
– Membership in a professional association(s);
– Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.”
National Interest Waiver (NWI)
A National Interest Waiver is usually granted to those who have exceptional ability in science, arts, or business, and advanced degree professionals (M.A., M.S., M.E., M.D., Ph.D.), whose work in the United States would substantially benefit the national interest. Such foreign nationals are not required to have employee sponsorship, but can file the petition by themselves.
The National Interest Waiver is a good option for those who do not wish to tie themselves to a specific employer and do not wish to wait for several months for their labor certification. NWI applicants may also make additional green card applications while waiting for their petition to be approved.
One well known category of professionals that frequently qualify for the National Interest Waiver is physicians who work in underserved areas. Such physicians can agree to work full time in a designated health professional shortage area, where a federal agency or state department of public health has determined that the physician’s work will be in the national interest.
To be eligible for a National Interest Waiver, a foreign national must demonstrate that it is in the national interest that he/she works permanently in the United States, as well as meet education or qualifications criteria.
In order to demonstrate that the request to waive the job offer requirement is in the “national interest,” USCIS requires that the applicant demonstrate that his/her work in the United States is of “substantial intrinsic merit.” This means that the work performed by the foreign national must be unique and important, demonstrated through letters from the petitioner, the company or experts, and published material on the petitioner’s/company’s work.
A potential National Interest Waiver petitioner must also show that their work will benefit the United States, generally speaking. This means that even if the the foreign national’s employment is local, the benefit of performing the job must spread to more than just that area of the country. Entrepreneurs can satisfy such a requirement by demonstrating how their enterprise will benefit the United States in a more significant way than others in the same field.
USCIS describes the following evidence that may be submitted to demonstrate that the impact of work is national in scope:
– “Published articles or media reports;
– Copies of contracts, agreements, or licenses showing the scope and impact;
– Letters from current and former employers discussing the NWI applicant’s work and its national importance; and
– Letters from experts in the field attesting to the applicant’s work and its national importance.”
In order to demonstrate eligibility for the National Interest Waiver on an additional level, petitioners must demonstrate that they will serve the national interest better than the majority of their colleagues and that they exercise a certain influence on their field. Because the petitioner is expected to benefit the United States, he/she will be required to document past achievements that suggest a continued success after immigration.
The following evidence, as detailed by USCIS, may be submitted to demonstrate the ability to benefit national interest of the United States:
– Published materials that recognize achievements;
– Evidenced of funding that the petitioner has received for their work;
– Proof of how the petitioners work/contributions are used by others in the field
What is a Labor Certification Application (LCA)?
In order to petition on behalf of an EB-2 employee, employers must be LCA approved. The LCA process seeks to ensure that jobs are not given to foreign workers before being offered to similarly qualified U.S. workers, by requiring that employers appropriately advertise the position and interview candidates. Upon completion of the LCA process, the U.S. Department of Labor (DOL) confirms that the employer applying on behalf of an EB-2 foreign worker has failed to find qualified U.S. workers, thereby allowing them to hire the EB-2 worker.
Application Process
To apply for an employment-based, second-preference visa, the employer must first file for labor certification with the Department of Labor on Form ETA-750, submitting specific information about job requirements as well as all the advertising materials and evidence of search process. The employer must demonstrate its ability to pay the contracted wage throughout the beneficiary’s employment, until he/she obtains permanent residency.
Accompanied by an approved individual LCA, an employer must file Form I-140, Petition for Alien Worker to USCIS. The filing fee for I-140 form is $580 (plus $1,225 if using premium processing). Once the I-140 application is approved by USCIS, the applicant must file Form I-485, Adjustment of Status (actual green card application) for himself or herself, spouse and children under age of 21.
Similarities and differences between EB-2 and EB-5
Both EB-2 and EB-5 are employment-based immigrant visa categories, which allow foreign nationals to receive permanent residency in the United States and eventually apply for citizenship. EB-2 and EB-5 visa holders are also allowed to bring their family members including spouses and children under age of 21. Both visa categories require foreign nationals to prove that their immigration will profit the country and its citizens, particularly U.S. workers.
For the EB-2 category, the foreign national must prove that he or she is skilled in a certain trade that would benefit the country. An alien must hold an advanced degree, have a job offer and prove his/her contribution to science, business or art, which will make presence in the United States beneficial. On the other hand, EB-5 visa applicants must make a minimum investment of $500,000 dollars in order to create minimum 10 jobs for U.S. workers, which would be beneficial for the U.S. economy.
The main differences between both immigrant visas include:
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EB-2 visa category
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EB-5 visa category |
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– Does not require any investment or creating jobs |
– Beneficiary must invest $1 million (or $500,000 in TEAs) and create minimum 10 full-time jobs |
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– Requires applicant to hold an advanced degree beyond baccalaureate degree, five years of progressive experience or demonstrate exceptional ability in science, arts or business |
– Does not require applicants to hold a degree or have an exceptional ability, but need to prove the source of their money |
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– Requires sponsorship from the employer (unless applying for National Interest Waiver) |
– Applicants absolutely independent from any employer: they choose the project, make investment, do the application |
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– Employer sponsoring EB-2 beneficiary must obtain a labor certification process, which is always a long and complicated process |
– No need of LCA for EB-5 applicants |
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– EB-2 visa holder is obliged to work for the sponsoring employer during entire period until obtaining permanent residency |
– EB-5 visa holder does not have to be an employee for the EB-5 entity |
Conclusion
While the EB-2 process can be complex and involves complying with a number of requirements (such as labor certification and degree/experience), the approval process itself may be faster than other related labor-based visa categories. For instance, The EB-2 visa, for those who qualify, can offer a much quicker path to permanent residency than the EB-3 category, as there is a substantial visa backlog for EB-3 applicants. That said, given the complexity of an EB-2 visa application, it is best to consult an experienced immigration attorney for assistance.
