The Employment-Based Second Preference Immigrant Visa Category (EB-2) is available for persons with advanced degrees or persons of exceptional ability in the science, arts, or business.
Benefits of EB-2 Immigration
- Qualify for lawful permanent residence for you and your qualified family members
- Ability to work in your area of expertise in the United States.
- Children admitted to public universities at same tuition as U.S. residents/citizens.
- Ability to sponsor relatives for permanent residence.
- Can qualify for U.S. citizenship after five years as a permanent resident.
EB-2 Qualification Criteria
Professionals Holding Advanced Degrees
To qualify as a professional holding an advanced degree, the applicant must have either:
1) An official academic record showing the person has earned an advanced degree in the United States or a foreign equivalent degree; or
2) An official academic record showing the person has a baccalaureate degree earned from the United States or a foreign equivalent degree, and evidence that the applicant has at least five years of progressive post-baccalaureate experience in the specialty.
Exceptional Ability in the Sciences, Arts, or Business
To qualify as a person of exceptional ability in the sciences, arts, or business, the applicant must possess at least three of the following:
1) An official academic record showing the applicant has a degree, diploma, certificate, or similar award from a higher learning institution relating to the area of exceptional ability;
2) Letters from the applicant’s current or former employer(s) showing he or she has at least ten years of full-time experience in his or her current occupation;
3) A license or certification to practice in the applicant’s profession or occupation;
4) Evidence of earning a high salary or other remuneration for services, which demonstrates exceptional ability;
5) Evidence of membership in professional associations;
6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Exceptional ability is defined as something more than what is usual, ordinary, or common, and requires some rare or unusual talent, or unique or extraordinary ability in a calling which, of itself, requires that talent or skill, and such elements should be demonstrated along with the above six criteria.
National Interest Waiver
Under normal circumstances, an applicant for the EB-2 category must have an employer interested in hiring him or her and must go through a test of the job market to determine if there are any U.S. citizens or lawful permanent residents who are qualified, able and willing to take the position. If there are no such workers, then the employer can obtain a “Labor Certification” indicating there are no such U.S. workers and will be eligible to file a Form I-140 Petition with the United States Citizenship and Immigration Services (“USCIS”) for the applicant.
Conversely, if there is such a U.S. worker who wants the position, then the employer will not be issued a Labor Certification and will not be able to petition for the applicant. However, if the work the applicant will be doing is in the “national interest” of the U.S, the applicant may qualify for a National Interest Waiver and will not require a Labor Certification. Moreover, an applicant that can obtain approval of a National Interest Waiver may self-petition for him or herself.
The “national interest” test is not defined by law, but instead, we look at case law to help determinate what criteria the USCIS will consider is in the national interest and qualifying for the waiver.
On December 27, 2016 the case Matter of Dhanasar established a new analytical framework for determining whether a foreign national is eligible for a waiver of the Labor Certification requirement and thus a National Interest Waiver. The Matter of Dhanasar criteria are:
1) The foreign national’s proposed endeavor has both substantial merit and national importance;
2) The foreign national is well-positioned to advance the proposed endeavor. The USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals;
3) It will be beneficial to the U.S. to waive the job offer and Labor Certification requirements for the applicant. The USCIS will consider among other factors whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national’s contributions are sufficiently urgent to warrant foregoing the Labor Certification process. As part of this test, the applicant must also show that a favorable exercise of discretion is warranted.
Under this three-prong test, in order to be granted a National Interest Waiver, an applicant – either the foreign national self-petitioning or an employer – must demonstrate all the criteria are met under a preponderance of evidence (“more likely than not”) standard.
In most cases in which the applicant has an employer willing to hire him or her, the employer will handle the labor certification and petition filing work. If you are qualified and have an idea that you want to pursue that might be in the “national interest” of the U.S., and want to apply for a waiver, we can help.
How to apply for the EB-2 NIW Visa
- Our office collects all the information that we need from you at the start of the case and we will complete all the forms that are required throughout the process so you do not have to.
- We will work with you to develop your proposed endeavor you intend to pursue in the United States.
- Our office completes and files a Form I-140 Petition with the United States Citizenship and Immigration Services (“USCIS”) with supporting documentation.
- Once USCIS receives the Form I-140 Petition, a receipt number is issued. Processing times vary greatly depending on which USCIS service center processes. You may choose to pay extra for Premium Processing, which is a 15 business day review and adjudication.
- After USCIS approves the Form I-140 Petition, the file will be sent to the National Visa Center (“NVC”).
- Our office completes additional documentation including a DS-260 Online Visa Application, as well as supporting documentation required by the NVC.
- After all documentation is approved by the NVC, the file will be documentarily qualified before it is sent to the U.S. Embassy or Consulate and you will be scheduled for an interview.
- Our office will be notified that the U.S. Embassy or Consulate has received the file and an interview date has been scheduled.
- You will need to schedule a medical evaluation before proceeding for the visa interview. We will guide you on scheduling a medical evaluation.
- Upon receiving medical clearance, the interview may proceed.
- Our office will prepare a final checklist of documentation as well as hold interview preparation sessions before the scheduled appointment.
- On the day of the interview, we will be available to answer calls or questions or any issues arise.
- Provided that there are no outstanding issues, the consular officer will approve your immigrant visa and you will receive the EB-2 immigrant visa within a few days.
- You will have about six months to fly to the United States. Upon entry, you will be a lawful permanent resident and receive your green card in the mail in about one month.
Why Choose Our Firm for your EB-2 petition and application process?
Our firm has over 30 years of combined experience in representing applicants for business and investment visas such as the EB-2 visas. We offer a full-service, hands-on, comprehensive package designed to see the entire process through from beginning to end. As immigration attorneys who have hands-on experience in working directly with the U.S. Consulates in Ho Chi Minh City and the U.S. Embassy in Manila and across Asia. We provide our clients with a unique and personalized approach unmatched by other immigration attorneys.
