Employment-Based 2nd Preference Visa

Each year, the U.S. allocates a fixed number of green cards to foreign workers who are needed to fill vacant positions in the job market. These are called employment-based visas, and they allow immigrants to become permanent residents in the U.S. on the premise that they work and/or provide benefit to the nation as a whole.

While a first preference visa (EB-1) covers priority workers, a second preference employment-based visa (EB-2) applies to individuals who have been categorized based on their knowledge, background, and skills. There are three subcategories of the EB-2 green card that applicants may fall under: Advanced degree (A), exceptional ability (B), and national interest waiver (C).

EB-2A Visa

An EB-2A is specific to foreign individuals with an advanced degree. This subcategory of the EB-2 green card applies to applicants who possess a degree beyond a U.S. bachelor’s degree. This includes master’s degrees, doctoral degrees, or foreign equivalents.

The EB-2A also applies to foreign workers with a baccalaureate degree plus five years of progressive experience in a specific area. This requires proof of the degree or an equivalent of the degree, and letters from employers that prove at least five years of experience in the specialty. The experience must be deemed as progressive if the U. S. Citizenship and Immigration Services (USCIS) is to consider it equivalent to a master’s degree or other advanced degree.

Whether a foreign worker has an advanced degree or a bachelor’s degree with five years of experience, they must be approved by the U.S. Department of Labor’s (DOL) Foreign Labor Certification Process.

The DOL’s Foreign Certification Process is carried out by the foreign worker’s employer. The employer must identify the need to hire a foreign worker and confirm that the vacancy meets criteria for the selected labor program. Once the DOL certifies the necessity for the immigrant worker, the employer must then petition Citizenship and Immigration Services for an employment visa. Without the sponsorship of an employer, an individual cannot earn labor certification and therefore cannot earn an EB-2 green card.

EB-2B Visa

The second subcategory of EB-2 applies to foreign workers with what’s called exceptional ability. This applies to individuals who have a specialized degree and a significant proficiency in art, business, or science. It’s important to note that a degree alone is not sufficient to qualify an individual as having exceptional ability.

Evidence of exceptional ability must be proven through the presentation of at least three of the following documents:

• Official academic records that show an individual has a degree, diploma, or certificate from a school, university, or learning institution related to the specific field of study
• A certificate for a particular profession or a license to practice that profession
• Proof of membership in a professional association
• Letters from current or former employers that confirm the foreign person has at least 10 years of experience working full time in the particular field
• Evidence of a salary or remuneration earned by the individual that demonstrates exceptional ability
• Proof of achievements or significant contributions that have been recognized by peers, government entities, or organizations within the individual’s field

If an individual cannot provide any of the demonstrations listed above, the USCIS has indicated that it will consider other evidence that is comparable as long as it is relevant to the application. Athletes can also be considered to have exceptional abilities in the arts so they may qualify for the EB-2 green card.

Individuals in this category may not enter the country without DOL labor certification and an employer sponsor. While the hiring company is usually responsible for making a case to fill their vacancies, there is a way for foreign workers to enter without a specific sponsorship.

EB-2C Visa

Individuals applying for an EB-2 visa are required to have a permanent job offer and corresponding labor certification, or a National Interest Waiver (NIW). An NIW is a waiver of the employment offer in the case that an individual can prove their permanent residency is in the national interest of the U.S. As defined by the Immigration Act of 1990, the term national interest implies standards that are “significantly above that necessary to prove prospective national benefit.”

There is no set formula for proving that an individual’s permanent residence is worthy of an NIW. The USCIS has left this decision to be as flexible as possible. However, some of the factors that have previously been considered in successful applications include:

• The individual’s presence will improve the U.S. economy
• The individual’s admission will improve working conditions or wages of workers in the U.S.
• The individual’s admission will improve the U.S. environment and how the country uses national resources
• The individual’s residence will provide more affordable housing for U.S. residents who are young, old, or poor
• The individual’s admission is requested by a U.S. government agency interested in their particular knowledge or skill set

Physicians or healthcare workers that agree to work full-time in locations where there’s a shortage of professionals during a pandemic is an example of foreign workers who would qualify for an NIW waiver.

I-140 Petition

The second step in the employment-based green card process is filling out an Immigrant Petition for Alien Worker (I-140) form. This petition is what leads USCIS to classify an alien as eligible for an immigrant visa based on one of the previously mentioned employment-based visa categories.

For an individual to qualify under EB-2A and EB-2B, the I-140 form must be completed by an employer sponsor. It can be filed by mail or electronically, but the evidence supporting it must be sent to the corresponding service center.

Filing for an NIW

An NIW replaces the need for both a job offer and the labor certification, which means there is no need to be sponsored by an employer. However, the individual must still prove that they are eligible to enter the nation based on the criteria of EB-2A or EB-2B. To properly petition for an NIW, they must possess an advanced degree or exceptional ability of some kind. If the EB-2C petition is approved, an individual under NIW may self-petition the I-140 form for himself. Since 2016, the approval rate for NIW petitions has been close to 100%.

Application Process

Currently, the U.S. allows roughly 140,000 employment-based green cards to be distributed within a year. Around 40,000 of those are reserved for individuals in the EB-2 category. There’s no cost to file for an EB-2 green card, but it can take 6-8 months for an employer to hear back from the DOL about the certification process.

The second step of receiving a green card that involves the filing of an I-140 petition currently costs $700 by check or money order to the most relevant USCIS regional service center. Once the I-140 is filed, the USCIS will review and make a decision whether or not to approve it. Processing time varies from case to case, but it typically takes no more than 3 months for the approval notice to be issued. It’s important to note that just because an I-140 petition is approved, it does not change your immigration status.

The application for permanent residence is an I-485, which costs between $750-$1,225 depending on an individual’s age. Employment-based applicants can file an I-485 concurrently with an I-140 with all the necessary documentation to speed up the process, but it will still take between 8-14 months to approve this step.

Contact an Immigration Attorney Today

Navigating the employment-based visa process in the U.S. is not easy to do without extensive knowledge of immigration law. There are a multitude of specific details that need to be addressed and can be easily overlooked without the guidance of counsel. The Chicago immigration lawyers & Deportation Defense Lawyers at Scott D. Pollock and Associates, P.C. have decades of combined experience in helping guide both employers and foreign workers through this complex application process. Reach out as soon as possible to minimize potential risks. Contact a member of our team today 312.444.1940.