What is
EB-2 Visa
The EB-2 visa is an employment-based immigration visa designed for foreign nationals who possess an advanced degree or exceptional ability in the sciences, arts, or business. The EB-2 visa provides a pathway to lawful permanent residency (a Green Card) and, ultimately, U.S. citizenship.
The EB-2 Green Card application process
The EB-2 application process involves several steps, each requiring careful attention to detail and adherence to specific requirements. Here’s a detailed guide to help you through the process:
Step 1: Securing a PERM Labor Certification
Before filing an EB-2 petition, the U.S. employer must obtain a Permanent Employment Certification (PERM) from the Department of Labor (DOL). The PERM certification process involves several key steps:
- Determine job requirements:
- The employer must define the job requirements and ensure they are not tailored to the foreign worker’s qualifications but are standard for the position.
- Prevailing wage determination:
- The employer must obtain a prevailing wage determination from the DOL, ensuring that the wage offered to the foreign worker is at least equal to the prevailing wage for the occupation in the area of intended employment.
- Recruitment process:
- The employer must conduct a recruitment process to test the U.S. labor market. This involves posting the job with the State Workforce Agency, placing advertisements in newspapers, and utilizing other recruitment methods to ensure there are no qualified U.S. workers available for the position.
- Filing Form 9089:
- Once the recruitment process is complete, the employer files Form 9089 (Application for Permanent Employment Certification) with the DOL. This form includes details about the job, the recruitment efforts, and the foreign worker’s qualifications.
Step 2: Filing Form I-140
After obtaining PERM certification, the employer must file Form I-140 (Immigrant Petition for Alien Worker) with the U.S. Citizenship and Immigration Services (USCIS). This form establishes the foreign worker’s eligibility for the EB-2 immigrant category. The employer must include supporting documentation, such as:
- Evidence of the PERM certification.
- Proof of the foreign worker’s qualifications meeting the job requirements..
- Evidence that the employer can pay the offered wage.
Step 3: Waiting for a Visa Number
Once Form I-140 is approved, the foreign worker must wait for a visa number to become available. Visa numbers are allocated based on the applicant’s country of origin and the priority date assigned to the I-140 petition. The U.S. Department of State’s Visa Bulletin provides updates on visa number availability.
Step 4: Applying for a Green Card
When a visa number becomes available, the foreign worker can apply for a Green Card through one of the following processes:
- Adjustment of status:
- If the foreign worker is already in the U.S., they can file Form I-485 (Application to Register Permanent Residence or Adjust Status) with USCIS. This process includes a biometrics appointment and possibly an interview with USCIS.
- Consular processing:
- If the foreign worker is outside the U.S., they must apply for an immigrant visa through consular processing. This involves filing Form DS-260 (Immigrant Visa and Alien Registration Application) and attending an interview at a U.S. consulate or embassy.
Document checklist for the EB-2 petition
To ensure a successful EB-2 petition, it is crucial to gather and organize all necessary documents. Here’s a checklist of the essential documents:
For advanced degree applicants (EB-2A):
- Official academic records showing the advanced degree or its equivalent, or letters from employers verifying at least five years of progressive post-bachelor’s work experience.
- Documentation of any additional requirements specified in the PERM certification.
For exceptional ability applicants (EB-2B):
- Official academic records showing a degree, diploma, or certificate in the area of exceptional ability.
- Letters documenting at least ten years of full-time experience in the occupation.
- Evidence of a high salary or other remuneration for services.
- Membership in professional associations.
- Recognition for achievements and significant contributions to the field.
- Licenses or certifications to practice the profession
(meet at least 3 from the above list)
For National Interest Waiver applicants (EB-2C):
- Evidence that the proposed endeavor has substantial merit and national importance.
- Documentation that the applicant is well-positioned to advance the proposed endeavor.
- Proof that it would be beneficial to the U.S. to waive the labor certification requirement.
EB-2 Green card processing times:
- PERM Labor Certification: Approximately 1 year at the Department of Labor, with potential delays if subject to audit.
- Form I-140 Processing: Typically around 6 months, with an option for premium processing (15 days).
- Adjustment of Status or Consular Processing: Varies depending on individual circumstances and country of origin. It can range from a few months to several years, particularly for applicants from countries with high demand, such as China and India.
H-1B visa and the lottery system
H-1B visa cap exemptions
Premium processing for H-1B visa
Eligibility criteria
To qualify for an EB-2 Green Card, applicants must fall under one of three categories: Advanced Degree, Exceptional Ability, or National Interest Waiver.
1. Advanced degree:
- The applicant must have an advanced degree (master’s or higher) or a bachelor’s degree followed by at least five years of progressive work experience in the field.
2. Exceptional ability:
- The applicant must demonstrate exceptional ability in the sciences, arts, or business, significantly above that ordinarily encountered in their field. Evidence of exceptional ability can include:
- Official academic records showing the degree or certificate in the area of exceptional ability.
- Letters documenting at least ten years of full-time experience in the occupation.
- A license to practice the profession or certification for a particular profession or occupation.
- Evidence of a high salary or other remuneration that demonstrates exceptional ability.
- Membership in professional associations.
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations.
- The applicant must meet at least 3 of the above mentioned criteria.
3. National Interest Waiver (NIW):
- Applicants who qualify for a National Interest Waiver do not need a job offer or labor certification. Instead, they must demonstrate that their work benefits the United States substantially. This category is for those applicants with advanced degrees or exceptional ability, whose employment in the U.S. would greatly benefit the nation.
The importance of legal consultation in today's complex world
Navigating the complexities of the EB-2 process can be challenging. Seeking legal consultation ensures that you fully understand the requirements and have all the necessary documentation in place. Legal experts can guide you through each step, increasing your chances of a successful application. At Partovi Law PLLC, we provide comprehensive legal services to help you stay updated with the latest changes and avoid common pitfalls, ensuring a smoother and more efficient application process.
Key benefits of the EB-2 visa
1. Path to permanent residency:
The approved I-140 petition in EB-2 category provides a direct route to obtaining a Green Card, allowing you to live and work permanently in the U.S.
2. Status for dependents:
Spouses and unmarried children under 21 can accompany the primary visa applicant to the U.S. on derivative visas (E-21 for spouses and E-22 for children).
3. Faster application process:
Certain EB-2 visa holders, those with a National Interest Waiver, can bypass the labor certification process, expediting the application process. Also, the visa backlog in EB-2 category is usually less significant than in EB-3 category.
When to seek legal consultation
Given the complexities and nuances of the EB-2 process, it is advisable to seek legal consultation if you:
- Are unsure whether you meet the eligibility criteria for the EB-2 category.
- Need assistance in gathering and organizing the required documentation.
- Require guidance on the labor certification process.
- Wish to apply for a National Interest Waiver.
- Need help navigating the adjustment of status process or consular processing.
