Last Updated on January 12, 2023 by Linda Lee
VISAS FOR PROFESSIONAL WORKERS IN CALIFORNIA
EB-2 for Professional Workers
The United States grants permanent residency to foreign nationals who exhibit great talent, intelligence, or business prowess through EB-1 and EB-2 visas. The qualifications and processes associated with these visas are quite complex and extensive. An experienced immigration law attorney should not only be able to tell you whether you qualify, but also help you with the application process so you don’t make any missteps that cause the delay or denial of your visa.
Attorney Linda Lee and her associates at the Immigration Law Office of Los Angeles, P.C. have dedicated many years to helping immigrants find new opportunities and establish new lives in the U.S. We have learned to successfully navigate small business owners in the often confusing world of immigration petitions. We possess a deep and nuanced understanding of immigration law and keep track of any new developments in order to provide our clients with the best possible legal guidance. If you have any questions regarding your immigration matter, please call us at (213) 375-4084.
Who is Eligible for EB-2 Category?
EB-2 is an employment-based, second preference visa reserved for professionals who hold an advanced degree or its equivalent, or a foreign national who exhibits an exceptional ability. The categories are defined below:
- Advanced Degree: Qualified individuals are pursuing a job in the U.S. that requires an advanced degree or its equivalent (a baccalaureate degree along with five years of experience in the field).
- Exceptional Ability: Qualified individuals display exceptional ability in the sciences, arts, or business. Exceptional ability is defined as “a degree of expertise [that is] significantly above that ordinarily encountered in the sciences, arts, or business.”
- National Interest Waiver: Qualified individuals are employed in the U.S. and contribute greatly to the nation’s benefit. They may self-petition and file their labor certification directly with USCIS along with Form I-140.
Applicants must provide documentation that meets certain criteria established by the USCIS, including official academic records, membership in a professional association(s), recognition for achievements, and more. Our office can provide more details during your consultation with us.
Tips for EB-2 Applicants (Second Preference Category Visas)
Second Preference Category visas also known as, EB-2 (Employment Based) visas are dedicated for two types of foreign individuals, those who:
- Are members of professions who have an advanced degree or its equivalent,
- Have an exceptional ability in the sciences, arts or business.
The foreign worker must first have a full time job offer from a U.S. employer. The employer must complete the PERM/Labor certification to the Department of Labor (DOL). PERM stands for Program for Electronic Review Management. A labor certification is a declaration by the U.S. employer confirming that they have advertised the position and interviewed U.S. worker candidates. The labor certification further confirms that there are no qualified American Citizens or Permanent Residents for the positions and foreign workers are not taking jobs away from U.S. citizens. The employer must also submit a Prevailing Wage Request (PWR) to the DOL. A PWR confirms that the wage/salary the employer intends to pay is in line with the local job market for the particular position being offered.
Once these requirements have been fulfilled, the employer can then file a visa petition for the foreign worker on Form I-140. If the I-140 is approved and a visa is available, the foreign worker can then file a green card application also known as: Form I-485, Application to Register Permanent Residence or Adjust Status.
This visa category receives 28.6% of the yearly worldwide limit (about 40,000 annual visas, plus any unused Employment First Preference visas.) Because of a large number of applicants from China and India, it is common for there to be a wait list for applicants from these countries. The wait list for a visa under this employment based category is known as the Visa Bulletin. After a foreign worker’s Form I-140 is approved, he or she cannot apply for a green card until their visa is available. The Visa Bulletin can be found at: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.
Employers of some foreign individuals applying for an EB-2 visa may be able to forego the PERM/labor certification process by applying for a National Interest Waiver (NIV). A NIW is a request to have the PERM/labor certification process waived because it is in the national interest of the United States. Furthermore, individuals granted a NIW, can file their own visa petition (Form I-140), and do not have to have specific job offer. In other words, the NIW is available for both employers and self-petitioning foreign workers.
It is important to note that, an application for a NIW has very specific and stringent requirements, thus only a small percentage of individuals qualify for this waiver. The U.S. immigration laws do not have a specific definition of the term “national interest”, however United States Citizenship and Immigration Services (USCIS) looks to an Administrative Appeals Office (AAO) precedent decision from 1998 for guidance (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (NYDOT)). This decision provided the three requirements that USCIS officers use today to determine if an applicant qualifies for a NIW. To qualify for a NIW the applicant must show that:
- The employment sought is in an area of substantial intrinsic merit to the U.S.
- The benefit from the proposed activity will be national in scope, and
- The requirement of the PERM/labor certification process will adversely affect the national interest.
Each subcategory of the EB-2 visa has it’s own specific requirements:
- Individuals who have an advanced degree or a foreign equivalent degree must show that the prospective job requires an advanced degree, such as a: Master’s, Ph.D., Juris Doctor/law degree, or an M.D. An applicant without an advanced degree can also qualify under this subcategory if he/she possesses a baccalaureate degree plus 5 years progressive work experience in the field. The 5 years of work experience must have been gained after obtaining their degree and prior to the filing of a Labor Certification. Examples of jobs that fall under this subcategory are: architects, engineers, lawyers, physicians, surgeons, and teachers
- Individuals who have an exceptional ability in the sciences, arts or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field. Examples of jobs that fall under this subcategory are: mathematicians, physics or chemistry researchers, biomedical engineers, trade experts, musical composers, and dance instructors, Under this subcategory applicants must submit at least 3 of the 6 types of evidence listed in the Federal Regulations at 8 CFR 204.5(k)(3)(ii)(A-F).
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Tips for EB-2 Applicants
An EB-2 applicant should make sure to provide a roadmap of the evidence being submitted. This road map should contain persuasive arguments with sufficient detail establishing eligibility. Additionally, the enclosed evidence should be clearly labeled and well organized.
NIW applicants, should pay close attention to two AAO decisions when preparing their applications. The AAO NYDOT precedent decision from 1998, provides a consistent standard of evaluating NIW and is a valuable resource for any EB-2 NIW applicant. Also, in another decision from 1992 (Mississippi Phosphate file No. EAC 92-091-50126), the AAO noted seven factors that may be considered in determining eligibility under the national interest category:
- Improve the U.S. economy,
- Improve working conditions and wages of workers in the U.S.
- Improve education for U.S. children and training programs for workers with few qualifications,
- Improve U.S. health care,
- Provide affordable housing for young, elderly and poor individuals in the U.S.,
- Improve the U.S. environment and natural resource use,
- Receive a request from a U.S. government agency.
Although the EB-2 category does not allow for self employment, entrepreneurs may in some instances apply for this type of visa because a NIW allows self sponsorship and does not require a specific job offer. Entrepreneurs who do not qualify for an E-2 visa or an L-1 visa (insert links for E-2 visa and L-1 visa blogs here), but who meet the EB-2 requirements may want to consider a NIW.
How we can help
The immigration laws provide several employment based visa categories. Fulfilling the requirements for employment based visas is difficult and the application process has very demanding standards. Our office will provide you with experienced guidance to effectively assist you with your employment visa application. Throughout our representation we will keep you informed every step of the way. Our firm’s commitment to stay up to date with the immigration laws, statutes, regulations and precedent cases ensures that we file an approvable EB-2 visa application on your behalf. Our many years of experience with these types of cases will avoid you costly errors and unnecessary delays.
Helping You Manage the Application Process
Immigration law involves many bureaucratic twists and turns that may make the process confusing for those without legal expertise. The knowledgeable immigration lawyers at the Immigration Law Office of Los Angeles, P.C. can take care of the application process in your stead so you can focus on preparing for your new life in the United States. Contact us today to get started.