The green card backlog refers to the applicants who have to wait because of the limited number of green cards. Countries that are usually impacted by backlogs are India, China, Mexico, and the Philippines.
For nationals from large migrant-sending countries, such as India and China, the numerical limit and per-country ceiling has created long waits for employment-based green cards.
New prospective immigrants entering the backlog outnumber available green cards by more than two to one. For Indians, this backlog means that some prospective immigrants will have to wait decades to receive a green card, and many of them already reside in the United States.
How does the backlog rise?
Immigrants who want to obtain an employment-based green card have to go through specific steps. These include:
- To submit a petition (usually, the employer will do this on their behalf)
- To apply for a green card if the petition gets approved.
There are five categories based on the priority that immigrants are offered for green cards. As such, different categories will have their annual caps.
- EB-1 – includes priority workers (athletes, scientists, businessmen, artists, or professors acclaimed internationally and multinational executives. Include unused EB-4 and EB-5 green cards are also included.
- EB-2 – includes professionals (jobs that require an advanced degree or higher). This category also includes workers who have expertise above the ordinary in their field and unused EB-1 green cards.
- EB-3 – for skilled workers (having at least two years of experience and being offered a job that requires a bachelor’s degree). Includes unused EB-2 green cards.
- EB-4 – for special immigrants (broadcasters, religious workers, the U.S. military and government employees, and abandoned juveniles).
- EB-5 – for foreign investors with investments in a new U.S. commercial enterprise, and between $500,000 and $1.8 million.
Each category has a limited number of visas that can be granted each year, and as you can see, the unused number of visas spillover through other categories.
If there isn’t enough cap space and your petition has been approved, you will enter the backlog and be waiting to apply for a green card, not to have your petition processed. When cap numbers become available, you will apply for your green card.
So, is this the only reason that made the dates for EB2 India and EB3 India for Green Card not moving, and the number of issued Green Cards for EB2 India came from 23,000 to 3,000 in just three years? Well. not really.
One aspect that also impacts the green card backlog is that apart from prospective immigrants, their families (spouses and minor children) are usually eligible for green cards. They make up most of the employment-based backlog.
Another important consideration is that green cards are also limited to 7% of green cards, depending on the applicants’ birth country. This is especially important for countries such as India and China and other countries with many applicants to pass the available green card numbers. The backlog for Indians increased by almost 150,00 from April 2018 to November 2019.
There are about 1 million foreign workers and their family members who are waiting to receive a green card. According to Congressional Research Service, this employment-based backlog is projected to double by the 2030 fiscal year. As a consequence of the limited number of available visas and the number of people applying each year, many skilled immigrant workers are left behind.
With trends and big jump notices in October and November’s Visa Bulletin published by USCIS, there are possibilities to downgrade your EB-2 to EB-3. To keep up with trends, and increase your chances of obtaining a green card, make sure to seek legal help from an experienced attorney.
The process can be harsh and long so having a lawyer who can deal with any difficulties and make concerns clear can save you a lot of headaches and time to devote yourself to your family and career.
The EB-2 and EB-3 are both employment-based visas that grant permanent U.S. residency to foreign nationals. However, the conditions for obtaining them are different, as well as the waiting time.
Foreign nationals are welcome to apply for an EB2 -visa if they are holders of an advanced degree, which means bachelor’s degree or higher (master’s, doctorate), and if they have five years’ experience in the work field they wish to apply for.
Besides this requirement, a foreign national may be eligible for the EB2 visa if he/she has an exceptional ability in science, art, and business, which will be highly beneficial for U.S. interests. A person is considered to fall within this category if he/she performs an above-average degree of expertise in the mentioned fields of work.
EB3 visa has less stringent requirements as it does not require an advanced degree, exceptional ability, or specialized knowledge and is addressed to skilled workers, professionals, and other workers-unskilled labor.
Skilled workers are needed to have a minimum of 2 years of training or experience, while the professionals hold at least a U.S. baccalaureate or foreign equivalence and are members of the professions.
The other workers are persons who perform unskilled labor that requires less than two years of training, education, or experience but are not temporary or seasonal. As an EB-3 visa applicant, all you need is a job offer from a U.S. employer.
According to the October 2020 visa bulletin, there have been changes regarding people from China and India nationals’ mentioned visas. It has been easier to obtain an EB2 visa for a long time, and the waiting time was shorter.
This situation resulted in more demands for EB2 visas, while the EB3 process became less burdened. This situation will surely be limited until the EB3 becomes loaded, so those who act faster can expect to have benefited from this current change.
The good news is most people who are eligible for the EB2 visa will qualify for the EB3 visa as well, and you can downgrade from EB2 to EB3.
To downgrade from EB2 to EB3, the applicant’s employer will have to file an I-140 Petition for Alien Worker and a PERM labor certification. PERM labor certification proves that the U.S. employer attempted to hire a U.S. employee but failed to find the suitable one.
This PERM labor certification can be the same one that is already used to apply for the EB2 visa if the applicant continues to work for the same employer. If the applicant changes the employer or is not employed, the new PERM labor certificate must be submitted.
The applicant must work for the employer that hired him/her for six months and, after that, can freely change the job position. Premium processing that is usually available for visa applications and helps you speed the process by paying an additional fee will not be possible if your old employer applies within this scheme.
That is because the prerequisite for requesting the premium processing is filing the original PERM labor certificate. In this case, the USCIS already posses the original certificate from the previous EB2 application.
Despite it, there still exists an option of moving faster in this process, so it is possible to file EB3 i-140, i-485, together with EB-2 PERM in regular processing. Once the receipt numbers are issued, the pending i-140 can be upgraded to premium processing.
Anyway, if your i-140 is filed at the same service center that previously approved your i-140, it will be possible to obtain premium processing.
When the new EB-3 I-140 petition is approved, and the EB-3 priority date is current, the applicant can then file a Form I-485, Application to Adjust States, together with the companion EAD work permit and advance parole travel applications.
Since the EB-3 downgrade’s primary goal is to file an I-485 adjustment of status and not know how long the excellent cutoff dates in the Visa Bulletin will last, in most cases, it is highly recommended filing for both I-140 EB-3 downgrade and I-485 concurrently.
Introduction
AWaiting for the priority date to be current can be stressful, especially if this period already took it too long, which is incredibly usual if you are from China or India. If you are one of many people waiting for your green card application to move forward and are fed up with sitting and expecting this important news, you probably try to learn as much information as you can so that you can plan your stay in the United States.
There is one important source that will help you with this. It is Visa Bulletin that the U.S. Department of State — Bureau of Consular Affairs publishes each month detailing waiting lines for green cards.
Just last month, and again in November, the waiting line for the priority date for Indians in the EB-3 category jumped forward, allowing thousands of people to file the I-485.
The October 2020 Visa Bulletin brought some bad news, especially for those in the family-based categories. On the other side, it provided a silver lining for petitioners in the employment-based categories.
This trend continued with November Visa Bulletin 2020, as well. It made many people from India and China who have EB-2 petitions consider downgrading to an EB-3. This is because EB-3 is moving past the EB-2, and this situation is pretty rare. EB-2 usually used to be a faster route to a visa than the EB-3.
Hence, it would be best to learn how to act and navigate the EB-3 downgrade strategy with the changed situation. To be completely prepared, you should also know what the potential pitfalls you might encounter and how to avoid it in the process.
We prepared answers to the most common questions and concerns to understand how to deal with the current situation and obtain the green card.
First, let’s clarify what the Visa Bulletin is and why it is essential to know how to read it.
The visa bulletin exists because Congress sets the limit on the number of green cards issued each year. Moreover, the number of people seeking green cards has consistently exceeded the limit, and it created a backlog.
Being in line for a green card means that you have to keep track of actual changes you can see in the Visa Bulletin for the current month. To be ahead of any unpredictable situations, it is advisable to have all your documents needed for your green card application prepared in advance.
This way, you can avoid losing a chance to file your application, or while in panic, forget to attach any of the documents. Instead, make sure all of your important documents are in a folder, in the right order, waiting to be submitted.
In that case, you will be ready to file your application as quickly as possible right after the Visa Bulletin shows a green card is available to you. If you fail to apply in a month when a green card is available to you, you can face a backward movement called “retrogression” in the next Visa Bulletin. This way, you may eventually lose the opportunity to file for a lawful permanent residence.
As mentioned above, there is a limited number of “green cards” granted each year. Green cards are divided into categories based on sponsorship, based on family or employment, and other factors within those categories.
Also, allotment is divided by country, and there are 7% available green cards per country. If more people apply than the number of available visas, it will cause a waiting line to develop. By the end of the fiscal years, the allotment should be used, but if there are any unused green cards by September 30, they can be used the following year.
As mentioned above, DOS is charged with managing the waiting lines showing based on an assessment of demand against the number of available green cards and releasing it in the Visa Bulletin each month. You can check here how dates fluctuate in the November Visa Bulletin.
Recently, the U.S. Department of State began issuing two charts. The first one is Final Action Dates showing the actual waiting line for that month and the Dates for Filing presenting what DOS expects to be available in the coming months to help manage the workload.
Currently, 366,000 green cards are available annually. The total number is divided into a complex category system, with a specific quota for each category. There are two broadest types: family-based green and employment-based green cards.
When it comes to family-based green cards, the total number of available green cards is 226,000, including marriage-based green cards. Speaking of available employment-based green cards, this number is lower – 140,000 green cards are available for people who want to work in the United States.
This is not a problem for European or African countries that, by far, generated enough green card demands against the country cap. But on the other side, countries with a significant population, like China and India, face substantial backlogs.
For example, when it comes to India, which is the most retrogressed country, the dates for EB-2 and EB-3 for Green Card used not to move, and the number of Green Card issued for EB-2 came from 23,000 to only 3,000 in 3 years.
So, Why Do These Backlogs Happen?
The one answer is because there’s no spillover from EB1 to EB2 ROW and EB2 ROW to EB2.
But, there is one more reason- because there is EB3 to EB2 porting.
This means applicants in EB3 would have gained enough experience and become eligible for EB2, and transferring to EB2 would increase the wait times of those applicants.
So, know you probably want to know how to calculate the wait times for your Green Card.
In the 2020 October Visa Bulletin, EB-3 India and EB-3 China appeared to be advancing more aggressively related to EB-2 India and EB-2 China. For example, EB-3 India moves by 3.5 months (7 weeks for EB-2 India) while EB-3 China is forwarding by 5.5 months (EB-2 China advances by six weeks).
Under the Dates for Filing category, this is even more noticeable: EB-3 India advances by about five years while EB-2 India advances by two years. Sometimes, the wait can be as long as ten years for the priority date to become current on the I-140.
The November Visa Bulletin Includes:
- Dates for Filing Visa Applications chart indicating when intending immigrants may file their applications for adjustments of status or immigrant visas
- Application Final Action Dates chart showing when adjustment of status applications or immigrant visa applications may be approved and permanent residence granted
The USCIS decides which chart it will follow each month. In November, the USCIS determined to follow the later “Dates for Filing” for the EB- Employment-Based Visa Applications chart for employment-based filings for adjustment of status.
Therefore, if you seek to file applications for adjustment of status with USCIS in November 2020, you may use the Dates for Employment-Based Adjustment of Status Applications.
What is the November Visa Bulletin bringing when it comes to EB-2 and EB-3 for those two countries, India and China? USCIS will allow the following applicants to file I-485 in November 2020:
India
- EB-2 Priority Date before May 15, 2011;
- EB-3 Priority Date before January 1, 2015.
- Downgrade possibility: EB-2 India with Priority Date between May 15 and January 1, 2015.
China
- EB-2 Priority Date before October 1, 2016;
- EB-3 Priority Date before June 1, 2018.
- Possible to downgrade: EB-2 China with PD between October 1, 2016, and June 1, 2018.
As you can see, there are options to downgrade your EB- 2 to EB-3, and you can take it into account since it has some advantages. If your priority date is current in EB-3, and when you downgrade, you will be able to file I-485 for you, but also your dependents.
Also, when your I-485 has been pending for six months, you can switch employers. Many workers from India whose employers have filed EB-2 category I-140s (whose priority date is not current for that category) are seeking to downgrade and re-file the I-140 for the Eb-3 category (which is current) while retaining the EB-2 priority date.
The problem is, many employers will not file the I-485 for these workers. The workers are often left to find their attorneys to handle this for themselves, their spouses, and children. Find out how to downgrade your EB- 2 to EB-3.
So, downgrading to EB-3 will result in the ability to file the I-485 form for the adjustment of status. While your I-485 application is being processed, suppose that you filed it while you were inside of the United States, you are allowed to stay. But, while you are waiting for a decision, you cannot travel outside the United States because this can cause your application to be denied.
Learn how to file I-484, Application to Register Permanent Residence, for EB-3 applicants quickly and adequately.
Why This Big Jump in EB-3 Took Place Now?
This big jump happened now because the USCIS field offices have been closed, and it started gradually to reopen for the processing of I-485. In addition, consulates of the United States situated abroad have been closed for most services. This means that the field offices and consulates used fewer visa numbers.
Also, we see a drop off in demand for visa numbers due to economic conditions that weaken drastically and made some employers give up on hiring more people in this unstable time. So we may conclude that employers and immigrant applicants delayed or pulled back their applications, and this big jump happened.
As a result, it is expected to see a higher allocation of employment-based visa numbers in the next fiscal year. This will occur because, imposed by law, numbers of unused family-based visas from this fiscal year will be added to the employment-based allocation.
We saw a significant employment-based number usage in the fiscal year of 2020 before COVID-19, while we also saw limited family-based visa number usage.
When it comes to the cutoff dates for persons who belong to the category the “Rest of the World,” allocation continues to be current. This means that all eligible individuals to this allocation can continue to file applications to adjust status in November.
This will increase the volume of such applications received by the USCIS and the revenue raised by the USCIS, which faces financial difficulties, like many other agencies.
Do You Need an Attorney to Downgrade EB-2 to EB-3?
Although the EB-3 downgrade strategy can be rewarding, many obstacles on that path may prevent you from reaching the final aim. To avoid taking risks and losing the chance to obtain lawful permanent residence and being unsure how to go through the whole process, you should consider taking a legal professional to provide you with the right advice, firm support, and practical skills.
Our legal offices have many experienced immigration lawyers who will be able to develop the right strategy for your case, answer all of your concerns and lead you toward finally getting the green card.
This process may take some time and be exhaustive, but with the right persons on your side, the journey will be less stressful but more worthwhile once you provide your family with the secure and comfortable living in the country you chose to build your life in.
If you have received notice that USCIS denied your I-140 Petition for Alien Worker, there are a few different options you can take:
Option #1: Reapply
Once USCIS issues you a notice of denial, they must disclose the reasoning(s) behind rejecting your application. Reasons typically include nondisclosure of evidence, insufficient evidence, or that your petition did not meet the required criteria for whichever employment-based category of visa you applied for. However, there is no limit on how many times you may file an I-140. When doing so, it is key to take account of the reasons of denial from your initial application in order to make your second petition stronger.
For instance, if USCIS stated that there was no evidence disclosed of your official academic record of your Master’s degree, include a hard copy of the record when reapplying.
Another example, if USCIS stated there was insufficient evidence to prove your experience and achievements, then be sure to include numerous letters or evidence of recognition from friends, peers, and employers.
Remember, when reapplying, do not make your second application identical to the first. It is important to show USCIS that you have more to offer than what they initially reviewed in your case and that the new additional evidence proves that you deserve to be granted approval.
Although you must disclose all previously submitted evidence along with the new petition, do not just “copy and paste”— be sure to review what you are resubmitting and update any material.
Option #2: Appeal
If your petition was denied, you do have the option to appeal to the Administrative Appeals Office (“AAO”). When appealing, the AAO will review the facts of your case and determine whether USCIS erred in its decision of denial.
In general, if your application for an EB-2 visa was based on a job offer from a US employer, then the employer will be the one filing the appeal. When doing so, there are specific forms that must be completed and filed within 30 calendar days from the date you received your petition’s denial. At the time of filing, you do have the option to include supplementary evidence that may assist your case.
Option #3: Discuss with your lawyer
In general, it is most helpful to consult with your immigration attorney to discuss your next steps to take. If you and your employer have worked with the attorney when filing your I-140, then the attorney will already know your case inside and out and will be able to discuss any alternative routes or possible strategies that will be most helpful to your specific situation.
Lastly, if you are the beneficiary physically present in the US, remember that you must maintain legal status during any of the following procedures after receiving a denial of your I-140 petition. Otherwise, it may negatively affect your case and ultimately limit your options.
National Interest Waiver (“NIW”) is very desirable as it waives the requirement of a US job offer and labor certification, cutting off much of the visa application processing time.
However, NIWs are not just granted to any applicant. When applying under an NIW for an employment-based visa, you must produce at least 3 of the criteria under the exceptional ability standard and prove that it is in the national interest that you work permanently in the US.
The Immigration Nationality Act does not give a specific definition of what constitutes “national interest,” so we look to precedent or case law of how the Court interprets the term. However, the standard does not stay constant as it seems to evolve over time. The following cases outline the evolution of the NIW standard and how it has affected applicants.
Mississippi Phosphate (1992)
The Court offered straightforward guidelines and held that the following criteria is considered when determining national interest.
- Applicant improves:
- The US economy;
- US workers’ wages/working conditions;
- Education for children and under-qualified workers;
- Healthcare;
- Environment;
- Maintaining productive use of natural resources
- Applicant provides more affordable housing for youth, elderly, or poor; or
- A request for the applicant from an interested US agency
New York State Dept. of Transportation (1998)
Six years following the ruling in Mississippi Phosphate, the Administrative Appeals Office modified stricter standards for granting NIWs; however, the reasoning was unclear as to why. At the time, the AAO emphasized the significance of requiring the labor certification route in relation to the issue of US worker shortages.
Furthermore, the AAO opined that legislative history does not suggest that NIWs were intended simply as a means for self-petitioning foreigners to avoid the inconvenience of the labor certification process, and held that an applicant must demonstrate why the labor certification would be detrimental to the national interest.
The ruling in this case placed an insurmountable burden on aspiring national interest applicants. Moreover, it generated greater problems in the application processing system where many INS service centers returned NIW applications without a glance and issued RFEs asking petitioners for lengthy lists of additional evidence to be submitted.
Overall, the ruling made the process more burdensome for both sides, and ultimately, NIWs were hardly administered and applications were never processed in a timely manner.
Matter of Kazarian (2010)
Years passed, and the NIW standard was still set under strict scrutiny. Finally, Kazarian brought suit against the USCIS in the Ninth Circuit Court of Appeals, claiming that the Service erred in its consideration of the criteria in his application.
Ultimately, the Court found that the Service did err in its adjudication by imposing regulatory standards outside of the scope of the law. Here, the Court held that neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR §204.5. Overall, this relaxed the NYSDOT standard that imposed demanding requirements for applicants.
Matter of Dhanasar (2016)
Lastly, we reach the status quo on the evolving requirements for NIWs. In order to form more consistent and efficient adjudication of NIW applications, the AAO established a framework that the USCIS takes when determining whether an applicant may be granted an NIW. Now, the USCIS uses the following three-prong approach:
- Whether the foreign national’s proposed endeavor has both substantial merit and national importance;
- That he or she is well positioned to advance the proposed endeavor; and
- That, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.
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.
- EB-1: Priority Workers
- EB-2: Professionals with Advanced Degrees or Exceptional Ability
- EB-3: Skilled Workers, Professionals, and Unskilled Workers
- EB-4: Certain Special Immigrants
- EB-5: Immigrant Invest
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
- Aliens holding an advanced degree in science, art, or business;
- Aliens of exceptional ability; or
- 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.
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
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.
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.
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!
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
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.
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.
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!
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.