EMPLOYMENT BASED IMMIGRANT VISAS: EB-2

Information for EB-2 Professionals with Advanced Degrees or Persons with Exceptional Abilities

Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Science, or Business receive 28.6 percent of the yearly worldwife limit, plus any unused Employment First Preference visas. All Second Prefencence applicants must have a labor certification approved by the DOL, or a Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor cerfitication if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:

Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at leave five years progressive experience in the profession; and

Persons with exceptional ability in the arts, science, or business. Exceptional ability menas having a degre of expertise significantly above that ordinarily encountered within the field.

To whom does the EB-2 category apply?

You can receive employment based permanent residency under the EB-2 category if you are a foreign national:

Of extraordinary ability in the sciences, arts, education, business or athletics;
Who is an outstanding professor or researcher;
Who is a manager or executive subject to international transfer to the United States.

The second preference category of employment-based immigration includes aliens of exceptional ability and aliens holding advanced degrees in professional fields.

How many of these visas are available annually?

Each year the second preference category is allotted about 40,000 visas, including any not used in the first preference. Generally, this is a sufficient number of visas and there is no backlog. There is no distinction in the allocation of visas between the two-second preference subcategories. As a general rule, a labor certification is required, although in some cases a national interest waiver is available.

Who is considered to be an Alien of Exceptional Ability?

The key to demonstrating exceptional ability is to show that the applicant possesses a level of expertise above that which would normally be encountered in the field. Exceptional ability is limited to aliens in the fields of arts, science and business. After some debate, it now seems clear that for purposes of this category, athletics are to be considered an art.

What evidence must be included in an EB-2 application?

In making the application, the USCIS requires at least three of the following six types of evidence:

For advance degree EB-2s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability;
For exceptional ability EB-2s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
A license to practice or certification if required in the occupation;
For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability;
For exceptional ability cases, evidence of membership in professional associations;
For exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field;
Copy of an approved labor certification unless a national interest waiver is being sought.
Other comparable evidence may be submitted.

Who is considered an Advanced Degree Professional?

The USCIS defines a profession as an occupation in which a baccalaureate degree is the minimum requirement for entry. An advanced degree is any academic or professional degree above the level of a bachelor's degree. The Immigration and Nationality Act allows for the substitution of five years progressive experience in the field to substitute for the advanced degree.

What is a labor certification?

Labor certifications are documents that signify that the US Department of Labor has reviewed a position and determined that US workers with the minimum qualifications necessary to do the job are not immediately available. Employers need to go through an extensive recruiting process in order to get a labor certification and an EB-2 petition must include a copy of an approved labor certification. The labor certification process will be more fully addressed in a future article.

When will the labor certification requirement be waived?

A labor certification is not required if an applicant can demonstrate that granting the EB-2 petition is in the national interest. There are two kinds of national interest waiver applications available – the standard case and the physician NIW. Both are extremely complex topics and will be more fully discussed in a future article.

Alcala Immigration Law Firm can help you with this process. Contact us at: Consultations@VisasUSA.com; by phone at (801) 886-1111 for Utah or (800) 715-3851 outside Utah.

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.