EB-2 Immigrant Visa

What is the EB-2 Immigrant Visa Category?

Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:

  • Advanced Degree – Foreign workers who have an advanced degree, such as a Master’s or Doctorate, or its foreign equivalent: A bachelor’s degree and at least 5 years of work experience in the field. Workers in this category must be approved by the U.S. Department of Labor’s Foreign Labor Certification Process.

  • Exceptional Ability – Foreign workers who have a specialized degree and 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”. Workers in this category must also be approved by the U.S. Department of Labor’s Foreign Labor Certification Process.

  • National Interest Waiver – Foreign workers seeking to have the Foreign Labor Certification Process waived because it is in the national interest of the United States to do so. Unlike the other EB-2 green card categories, these workers do not need an employer sponsor and may self-petition for an EB-2 visa.

Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?

No, not every individual with an advanced degree will qualify.  It must be demonstrated that the occupation is a profession.  The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.  Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

 

What is “exceptional ability”? 

In order to qualify for the EB2 exceptional ability category, you must be working in the area of science, art, or business, and you must also have what is called exceptional ability in that field. Individuals seeking an EB-2 green card under the Exceptional Ability category must additionally meet at least three of the following requirements:

  • Official academic record of a degree relating to the field of exceptional ability.

  • Documentation of at least 10 years of work experience in the field.

  • Professional license or certification

  • A salary that indicates the person has exceptional ability in the field.

  • Be a member of related professional associations.

  • Peer or government recognition of achievements in the field.

  • Any other comparable evidence of exceptional ability.

 

What is the application process for an EB-2 visa?

The first step for obtaining an EB-2 visa is for the U.S. employer to obtain a labor certification (PERM). This may not be necessary if the foreigner is eligible for a National Interest Waiver.

Once PERM is approved, the U.S. employer will file an I-140 petition with the U.S. Citizenship and Immigration Services. Depending on if the foreign worker is subjected to the visa retrogression or not, the U.S. employer may file the I-485 application concurrently with the I-140 petition if there are visa numbers available to the foreign worker. 

© 2019 by Law Office of Lu & Associates.