Employment American Dream

Introduction

There are two distinct reasons why hundreds of thousands of foreigners seek to immigrate to the United States every year: (1) to unite with their American loved ones; and (2) to achieve the “American Dream” through employment and hard-work. This article will focus on the latter, and in particular, a sub-section of the vast area of permanent employment-based immigration. Employment-based immigration is when an alien obtains a green card for US permanent residency through a US job offer. This typically occurs when the employer is unable to find a qualified US citizen for the job, therefore, the employer seeks a foreign worker to fulfill the position. Obtaining an employment-based visa is one of many ways that opens the door for immigrants to the path to citizenship.

The United States worldwide-level of employment-based (“EB”) immigrants is set at 140,000 visas per fiscal year, meaning the government cannot exceed issuing more than 140,000 EB visas each year. The quota is set and renewed every year on October 1st.

There are 5 major EB visa classifications—each being distinct and having unique conditions from the other. This article focuses on the second EB visa category, its requirements, and the overall process to obtain permanent residency through US employment.

  1. EB-1: Priority Workers
  2. EB-2: Professionals with Advanced Degrees or Exceptional Ability
  3. EB-3: Skilled Workers, Professionals, and Unskilled Workers
  4. EB-4: Certain Special Immigrants
  5. EB-5: Immigrant Invest
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Advanced Degree / Diplomats

What is an EB-2 Visa and Who can apply for one?

EB-2 visas are exceptionally wanted by many immigrants as its overall processing time and duration to obtain a green card are relatively quicker than some other visa categories. In general, there are three avenues in which an immigrant may apply for an EB-2 visa. Each require separate collective conditions to be met, which will be addressed in detail later in this article. In addition, immigrants applying for an EB-2 visa must be sponsored by a US employer along with his/her permanent job offer; however, there is one exception to this rule.

(Keep in mind, because the employer must sponsor the immigrant and is the one filing documents to the Department of Labor and USCIS, the employer is classified as the “applicant,” and the immigrant worker is classified as the “beneficiary.”)

Three Categories for Eligibility of EB-2 Visa

  1. Aliens holding an advanced degree in science, art, or business;
  2. Aliens of exceptional ability; or
  3. National Interest Waiver.

The Law

Any US employer may file a Form I-140 Immigrant Petition for Alien Workers for an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. Examples of this category include doctors, lawyers, teachers, culinary chefs, architects, software developers, chemists, and more.

Advanced degree” means any US academic or professional degree or a foreign equivalent above that of baccalaureate. For example, holding a US baccalaureate degree or its equivalent along with at least 5 years of progressive experience in that specific field is considered the equivalent of a master’s degree. If the profession requires a doctoral degree, the immigrant worker must have a US doctorate degree or its foreign equivalent.

Exceptional ability” in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. This means that the burden is on the immigrant worker to prove that he/she owns a greater, distinct expertise in the profession than the average person in his/her field of specialty.

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EB-2 Visas: How to Apply?

How to apply

There are 3 steps in the process in order to successfully receive lawful permanent residence through your EB-2 visa.

  • Employer applies for a PERM
  • Employer files Form I-140
  • Beneficiary files Form I-485 to adjust status
EB-2 Visas: Step 1

Step 1: Employer applies for a PERM

This entire process begins by the US employer applying for labor certification through the Department of Labor. This step is necessary, where the government first tests and examines the US job market to determine whether there are any US citizens willing and qualified for the open position. This promotes the idea that businesses are seeking US citizen workers before opening the job position to foreign nationals, ensuring that the opportunity of jobs are not taken away from US citizens or otherwise negatively affecting the US labor market. Within this step, the employer basically has to provide that he advertised the job position for a period of time (typically 30 days), interviewed any prospective employees, and found that none of the candidates met the skills and criteria for the job. (It is essential that the employer goes through this process correctly, as any mistakes that might trigger suspicion to the DOL may lead to its business being audited… which is a whole other hurdle to overcome and can potentially delay your EB-2 visas processing time by over a year!) However, once the DOL finds that the employer has met all requirements, he/she will be issued an individual labor certification, which is necessary to proceed to the next step.

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EB-2 Visas: Step 2

Step 2: Employer files Form I-140

After an approved labor certification, the US employer may sponsor you, the beneficiary, and file From I-140 Petition for Alien Worker. This petition shows that your employer intends to hire you upon approval of the petition. The application must entail the labor certification, and substantial documentation evidencing that you are eligible for the job position. Evidence typically consists of proof of the job offer, proof that the employer has the financial ability to pay wages to the worker, the worker’s advanced degree, and proof of the worker’s specific skill set aligning with the job position. Once all documentation is assembled, the application must be filed at the USCIS office in the correct jurisdiction, along with filing fees totaling $700.

Now, the beneficiary must wait until the application has been processed, and the USCIS issues a receipt and written notice of its approval.

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EB-2 Visas: Step 3

Step 3: Beneficiary files Form I-485 to adjust status

There is one last step between an approved application and obtaining permanent residence status. Once the I-140 is approved, you must wait until your priority date is current to adjust status to become a lawful permanent resident and be granted work authorization. The worker’s priority date is the date the labor certification was filed with the DOL, or in instances where a labor certification is not required, the date the Form I-140 was filed on his/her behalf. Once current, if you are still outside the US, you would apply to adjust status through consular processing at the US consular office in your country. This entails a final interview determining whether you may obtain your work visa. If you are already in the US and are present in legal status, you can apply to the USCIS through Form I-485 to adjust status, and after security processing and a possible final interview, you will be mailed a decision granting or denying you a work visa. In some cases, your priority date may be current at the time of filing the I-140. When this happens, you have the option to concurrently file both the application for a work visa and adjustment of status which may shorten the overall process.

Now that you’ve received an approved I-485, you may begin working!

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EB-2 Visas: Evidence

Evidence to show alien holds an advanced degree

If you are applying for an EB-2 visa under the circumstance that you hold an advanced degree in either the sciences, arts, or business, you must produce the following evidence to be submitted with your Form I-140:

  • An official academic record of the US advanced degree (Master’s, Doctorate, etc.) or its foreign equivalent
  • An official academic record of the US baccalaureate degree or its foreign equivalent
  • Written letters from current and/or former employers showing you have at least 5 years of advanced post-baccalaureate experience in the specialty
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EB-2 Visas: Exceptional Ability

Evidence to show alien’s exceptional ability

If you are applying for an EB-2 visa under the circumstance that you have exceptional ability in either the sciences, arts, or business, you must produce at least 3 criteria from the following list along with 10 years’ experience in the field of specialty:

  • An official academic record showing you have a degree, diploma, certificate, or a similar award from college, university, school, or other learning institution relating to the area of exceptional ability
  • Written letters from current and/or former employers showing you have at least 10 years of full-time experience in the occupation for which you are pursuing
  • A license to practice the profession or certification for a particular profession or occupation
  • Evidence that you have commanded a salary or other compensation for services which demonstrates exceptional ability
  • Evidence that you are a member in professional associations in your specialty
  • Evidence of recognition for achievements and significant contributions to the industry or field by your peers, governmental entities, or profession or business organizations

In some occupations, the above standards do not readily apply. If this relates to you—do not fear that your petition will be denied! You may submit comparable evidence to establish your eligibility for the occupation you are pursuing. Speak with your immigration lawyer on other evidence and documentation you may produce in order to meet the necessary criteria.

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EB-2 Visas: National Interest Waiver

National Interest Waiver (NIW)

If you are applying for an EB-2 visa under a National Internal Waiver (NIW), the process and criteria are a little different than the other categories. Foreign nationals seeking an NIW are essentially requesting that the labor certification process be waived because their employment in the US would greatly benefit the nation. Furthermore, those seeking NIWs may self-petition their Form I-140—meaning, they do not need a job offer or a US employer to sponsor them. NIWs are typically sought by researchers, Ph.D. students, and other advanced degree professionals who seek to work in under-served areas.

When applying under an NIW, you must produce at least 3 of the criteria above and demonstrate that it is in the national interest that you work permanently in the US. The decision in Matter of Dhanasar (2016) establishes the three-prong approach that the USCIS takes when determining whether the applicant may be granted an NIW:

“USCIS may grant a NIW if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.”

The key concepts to take away from NIWs are that the employment that you seek to practice must be nationally beneficial and that advantages of waiving labor certification and a job offer outweigh the benefits of not waiving them.

Some examples of evidence that the Service has considered as nationally beneficial include improvement of the economy, environment, education, and healthcare. Proof of awards, government funding, or publications that others in your field rely on may be helpful to your case, too. Processing time for NIW applications varies for each case. Once you have successfully obtained your NIW, you will still need to wait until your priority date becomes current to apply to adjust status for a green card.

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EB-2 Visas: I-140 Approved

What do I do once my petition is approved?

The final step once your I-140 is approved is to apply to adjust status to become a green card holder. If you are already in the US, you may file at your local USCIS office. If you are still abroad at the time, you may apply at the US embassy in your home country. In this step, you will attend a final interview where the immigration official will make a final decision on whether you should be issued an EB-2 visa.

After a final approval, you may travel to the US and begin your employment. Don’t worry—family of EB-2 visa holders may be admitted to the US, too. During the time of filing your I-485, your spouse is able to file for an Employment Authorization Document (“EAD”) and file for an E-21 visa. Your unmarried children under the age of 21 may also file for an E-22 visa and are entitled to begin their American education.

One thing to keep in mind as you begin working is to immediately fill out the Form I-9 for your US employer to always keep on file. This is an employment eligibility verification which establishes your legal presence within the US and documents your eligibility to legally work. An emerging issue is that ICE will allegedly target US businesses and audit for any immigrant worker’s I-9. As an employer, you can get fined by ICE for mishandling I-9s or not having the immigrant worker complete the document. As the employee, if immigration authority finds that your I-9 is not current or found on file, this may lead to immigration consequences. Protect yourself!

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EB-2 Visas: Processing Time

How long does the overall process take to obtain my EB-2 Visa?

There are a variety of factors that will calculate into the length of the overall process of obtaining your EB-2 visa, meaning it varies case by case. One factor is whether you are required to get a PERM certification which may make the process take longer, or you might apply for a NIW which will save months. Another factor that affects the process depends on your priority date and whether there is any retrogression on the employment-visa calendar. For instance, typically workers from popular countries such as China and India may expect a longer wait period due to the exceeding amount of applications filed from those countries. Overall, the average length can wildly span from 1.5 years to several years. Ask your immigration lawyer for a better idea on how long the waiting period may be specifically to your case. If the timeframe is still too long, there is a premium processing option which may shorten the petition processing time from 6 months to 15 days. The fee for premium processing is $1410, however NIWs cannot use this option.

In the end, receiving the opportunity to live and work in America is well worth the process! An EB-2 visa is one step closer to gaining your American citizenship.

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