EB-2 Professionals with Advanced Degrees or Exceptional Ability

An Alien Worker may qualify for the second preference category if he or she:

1. Possesses an advanced degree.  Generally, the Alien Worker must hold, at the minimum, a U.S. Master’s Degree (or a foreign equivalent degree).  Alternatively, the Alien must have a U.S. baccalaureate degree (or a foreign equivalent degree) plus five years of experience; (Please note, specific degree equivalency standards published by the USCIS apply.  If you have a three-year Bachelor’s Degree from India, UK, Russia or other foreign countries, you might not be qualified for this category.  Please contact us to discuss your matter in detail);

   OR
 
2. Demonstrates exceptional abilities in the sciences, arts or business by showing at least three of the following:
   
   
   • A degree, diploma, certificate or similar award from a college, university, school or other institutions;
   • At least ten years of experience in the occupation;
   • A license or certification for the particular profession or occupation;
   • Evidence that the alien has commanded a salary for services which demonstrates exceptional ability;
   • Membership in professional associations (no requirement that members have outstanding achievements);
   • Recognition for achievements and contributions by peers, government entities, professional or business organizations.

LABOR CERTIFICATION REQUIREMENTS:

Aside from a few exceptions, the EB-2 category requires the employer who sponsors the alien work to obtain a certified labor certification (PERM) from the USDOL before filing the immigration petition (Form I-140).

EB-2 NATIONAL INTEREST WAIVER (NIW)

A national interest waiver is available to those employers/I-140 petitioners who can demonstrate that a waiver of the Labor Certification Process requirements will be in the national interest.

In order to qualify for a National Interest Waiver, the Employer must show that the alien work meets the three-prong test established in AAO Decision Matter of New York Department of Transportation:

1. The alien must seek employment in an "Area of Substantial Intrinsic Merit," i.e. a field that is valuable to the national interest of the Unites States, research in any scientific field;
2. The interest created by the alien created must be "national in scope," which means that the alien’s work has national influence in its specific field, rather than a limited regional impact;
3. The Employer must prove that the national interest would be adversely affected if a labor certification were required for the alien.   Therefore, the employer must show that the benefit of the alien's work to the U.S. far outstrips the interests in protecting U.S. workers through insisting on obtaining a Labor Certification for the alien’s position.

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I-140 Immigration Petition Process for EB-2:

With the exceptions for National Interest Waiver (NIW) and Schedule A Program, an employer who files an EB-2 category petition must first obtain a Labor Certification on behalf of the alien worker.  Then, the employer must file a Form I-140 Immigration Petition within the 180-day period after the USDOL issues the Labor Certification.

If the employer seeks a National Interest Waiver, the employer may directly file a Form I-140 Petition with proof that the alien meets all the NIW criteria.

Once the USCIS approves the I-140 Petition, the approval notice will list the alien worker’s priority date as either the date when the Labor Certification Application is filed with the USDOL, or the date when the I-140 Petition for NIW is filed with the USDOL.

Green Card Application:

The U.S. Department of State publishes a monthly visa bulletin showing that immigrant visas are available for alien workers with priority dates that are before the cut-off date for each Employment Preference Category.  Currently, there is a backlog for immigrant visa numbers in the EB-2 preference category for applicants born in China and India.  As of July 2010, the wait time for an I-485 applicant born in China and India is approximately four years.

For details, please review the USDOS visa bulletin at http://travel.state.gov/visa/bulletin/bulletin_1360.html.


EB-3 Preference: Professional, Skilled Workers and Others

The third preference consists of skilled workers, professionals and "other workers."

Skilled workers are those whose positions require a minimum of two years of training or experience.

Professionals must possess a U.S. baccalaureate degree (or a foreign equivalent degree); [Please note, specific degree equivalency standards published by the USCIS apply. If you have a three-year Bachelor’s Degree from India, UK, Russia or other foreign countries, you might not be qualified for this category. Please contact us to discuss your matter in details]

Other workers refer to other unskilled workers.

In most cases, the third preference worker must have a job offer and obtain a labor certification (PERM) from the USDOL before filing the immigration petition (Form I-140).

When the USCIS approves the I-140 petition, the approval notice will identify the Alien Worker’s priority date, which is the filing date of the Labor Certification Application with the USDOL.

Green Card Application:

The U.S. Department of State publishes a monthly visa bulletin showing that immigrant visas are available for alien workers with certain priority dates in each Employment-Based Preference Category. A person is eligible to apply for legal permanent residence if his priority date is current for processing in the employment-based visa category, subject to per country limitation. Currently, the Green Card processing for aliens born in China, India, the Philippines, Mexico and Dominic Republic in the EB-3 preference category is severely backlogged.

For details, please review the USDOS visa bulletin at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

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