The United States has always been a land of opportunities, drawing highly skilled professionals and individuals with exceptional abilities from around the world. One of the prominent pathways to achieving the American dream is the EB-2 Employment-Based Immigration. This program is designed for those who possess advanced degrees, outstanding skills, and a commitment to making a significant impact in their respective fields. In this comprehensive guide, we will explore the EB-2, its eligibility criteria, the application process, and the National Interest Waiver (NIW).
What is EB-2?
The EB-2 visa is a part of the employment-based immigration system in the United States. It is divided into two subcategories:
EB-2(A): Advanced Degree Professionals
If you are a professional with an advanced degree, such as a master's or a higher academic degree, and have a job offer in the United States that requires this advanced degree, the EB-2(A) visa may be your avenue to work and live in the United States. Additionally, you must demonstrate that your skills and expertise make you a perfect fit for the position. When assembling your supporting documents, it is essential to include the following:
Documentation of Educational Attainment:
This should consist of an official academic record demonstrating that you hold a U.S. advanced degree or an equivalent foreign degree. Alternatively, you can provide an official academic record indicating the possession of a U.S. baccalaureate degree or a foreign equivalent, coupled with letters from your current or former employers that affirm a minimum of 5 years of progressive post-baccalaureate work experience within your specialty.
Doctoral Degree Requirement:
If the position you are pursuing typically mandates a doctoral degree, you must possess a United States doctorate or its foreign equivalent.
EB-2(B): Individuals with Exceptional Ability
For those who possess exceptional abilities in their fields, whether it's arts, sciences, business, or athletics, the EB-2(B) visa is the option to explore. To be eligible, you must prove your exceptional ability and demonstrate that your work will benefit the United States. You should either have a job offer in your field or plan to work in the area where your expertise lies.
Application Process for EB-2 Visas
Labor Certification Process
For EB-2(A) applicants, obtaining a Labor Certification through the Program Electronic Review Management (PERM) process is typically required. The primary purpose of the PERM process is to protect the interests of U.S. workers and ensure that there are no qualified U.S. workers available to fill the job position for which an employer is seeking to sponsor a foreign national.
The process begins with the U.S. employer who wishes to hire a foreign worker for a specific job opportunity. Before they can proceed with sponsoring a foreign worker for an EB-2 or other employment-based green card categories, they must first obtain a labor certification from the U.S. Department of Labor (DOL). The employer must define the job requirements, including the educational qualifications, experience, and skills necessary for the position. They are also required to conduct a prevailing wage determination to establish the minimum wage that must be offered to the foreign worker to ensure that it does not negatively affect the U.S. labor market. Moreover, the U.S. employer is obligated to test the labor market by advertising the job opportunity through specific channels, including print and online media. They must conduct recruitment efforts to attract U.S. workers to the position. Once the recruitment process is completed, the employer compiles all the required documentation, including evidence of their recruitment efforts, and submits the labor certification application to the DOL for review. The DOL will review the application to ensure that the employer has met all the required advertising and recruitment obligations. If the DOL is satisfied that the employer has complied with these requirements and that there are no available, willing, and qualified U.S. workers for the job, they will issue a labor certification. This certification essentially verifies that the employer's hiring of a foreign worker will not negatively impact the U.S. job market.
National Interest Waiver (NIW)
For some EB-2(B) applicants, the National Interest Waiver (NIW) can be a more efficient route. The NIW exempts them from the labor certification process, simplifying their application process. To qualify for an NIW, an applicant must prove that their work is in an area of substantial intrinsic merit, benefits the U.S. population as a whole, and is in the national interest of the United States. Providing compelling evidence of accomplishments and recognition in their field is crucial. For more details, please refer to our article: Are you eligible for NIW?
Priority Dates
EB-2 operates under a preference system, and the demand for these visas can often exceed the annual limits set by the U.S. government. Your priority date, established when the U.S. Citizenship and Immigration Services (USCIS) receives your Form I-140, is a critical element in your application. The Visa Bulletin published by the U.S. Department of State dictates when your priority date becomes current, allowing you to proceed with the final steps of your application.
Adjustment of Status (AOS) or Consular Processing
Once your priority date is current, you can either apply for an immigrant visa at a U.S. consulate in your home country (consular processing) or adjust your status to that of a permanent resident if you are already in the United States (AOS). Both routes involve medical examinations, background checks, and interviews to determine your eligibility for the EB-2 visa.
Family of EB-2 Visa Holders
If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status as well, respectively.
In conclusion, the EB-2 visa program offers a unique opportunity for highly skilled professionals and individuals with exceptional abilities to live and work in the United States. By understanding the intricacies of the application process, following the proper procedures, and presenting a strong case, you can make your American dream a reality. EB-2 provides a pathway for those who aim to contribute their expertise to the United States and enrich their lives in the land of opportunities.
If you think you qualify and wish to apply, please feel free to email our Managing Principal Yen-Yi Anderson at y.anderson@aalawpc.com for an initial screening. You can also give our firm Anderson & Associates Law, P.C. a call at either 646-201-9117 or 646-452-9982. Our hours are Monday through Friday from 9 am to 6 pm.
Author: Blair Xu. Blair joined as a Law Clerk at Anderson & Associates Law, P.C. in 2023. She focuses on immigration law and corporate law. Prior to joining the firm, Blair worked at a personal injury law firm in New York City. She also interned/worked at various leading law firms in China and Japan, focusing on cross-border legal issues. Blair graduated from Cornell Law School with a Master of Laws (LL.M.) degree. She also earned an LL.M. degree from Nagoya University in Japan and her Bachelor of Laws (LL.B.) degree from Tongji University in China. Blair passed the New York Bar Exam in July 2022 and is pending admission.