The EB-2 preferential category visa for immigrants came about as a result of the immigration Act of 1990 to aid professionals of exceptional ability land an employment-based permanent residency in the United States. It caters for professionals who have obtained certification in advanced degrees as well as those who have exhibited distinctive ability in the field of business, science or art.
Contributions made by these individuals have been perceived to be of value to different aspects of the U.S economy, in terms of improving educational quality and welfare of the state. Such professional exceptionality prompts interest from U.S employers. EB-2 applies to all professionals of exceptional ability in the fields of business, science and art, but excludes those applying for exemptions under the national interest waiver.
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These top professionals are required to get labor certification, they also need to have secured a job offer from a U.S employer, who in turn has to file an immigration petition for alien workers known as a form I-140 with the USCIS.
Criteria For Eligibility Under EB-2
It is advised that you go through section 203(b)(2) (8 U.S.C. 1153(b)(2)) of the immigration and national act (INA) to better understand the statutory requirements for this visa. Which is also covered in Title 8 code of Federal Regulations (8 CFR) at section 204.5(k) which throws more light on the regulatory requirements. The EB-2 visa is made up of 2 sub-categories:
- Advanced degree – which entails that the job vacancy be filled by an individual with a master’s degree or a higher qualification. Alternatively, the applicant should be in possession of a bachelor’s degree or its equivalence plus 5 years advanced work experience in his chosen field. It must be stated at this junction that not all advanced degrees are accepted; the applicant’s chosen field must be professions such as architecture, engineering, law (lawyers), surgeons, teachers in elementary/secondary schools/colleges/academics/seminaries and physicians, although the above list is not exhaustive, applicants however, are required to have the foreign equivalent of a US bachelor’s degree.
- Exceptional ability – applicants must be of a proficient level significantly higher than the average joe found in the fields of business, art and science.
- National interest waiver – in this sub-category scenario, labor certification is waived because this is pertinent to the interest of the United States. Other EB2 requirements still have to be met before national interest waiver can be activated. Requirements such as an advanced degree or being a professional of exceptional ability. Applicants who fall under this sub-category are eligible to tender self-petitions and do not need an employers’ backing for sponsorship. One profession that enjoys the benefits of this sub-category (national interest waiver) the most are physicians particularly those who agree full time employment in areas where there are shortages of healthcare professionals.
Are Entrepreneurs Eligible For A EB-2 Visa?
It is worth mentioning that entrepreneurs are eligible to apply for an EB-2 visa, however certain conditions must be met first.
EB-2 Visa Quota System
The Department of State is in charge of placing FY-2012 numerical limit, which translates to the worldwide cap placed on employment-based preference that individuals the world over can get in trying to become permanent residents of the U.S based on their exceptional professional ability. This has been the case since September 2012.
The worldwide limit of professionals that can get into the United States under this category is capped at 144,951, with a limit per country placed at 7% (of worldwide cap). This of course is irrespective of the country’s population. Worth stating here, is the fact that there is a 28.6% limit of worldwide level reserved for recipients of EB-2 visas, this is because there usually are spillovers from candidates looking to apply under the EB-1 category.
Application For EB-2 Visa
An application for the applicant’s labor certification is required while looking to access this visa category. Once secured (labor certification), your I-140 petition for immigrants has to be submitted to the USCIS by your United States employer.
Filing a I-140 with a mandate for an authorized labor certification is very significant in the visa acquisition process, because it shows the United States government that the applicants’ U.S employer has the ability to pay the wages agreed upon with the employee of exceptional ability as stated in the labor certificate application
Usually there is a priority date in which all supporting documents have to had been submitted. The U.S employer is given till this date to prove that its ability to meet the proffered wage demands is undeniable. This vetting process continues until the applicant gets his/her legal permanent resident permit.
On the EB-2/I-140 petition, The applicant’s requirement of bachelor’s degree or its equivalence can only be validated by an academic education or a completed degree program. In the I-140 petition, the language equivalent is assumed by the USCIS to be the equivalent of a foreign degree. A combination of education and experience will not be accepted.
Some U.S employers might accept a combination of education and experience in place of a bachelor’s degree, which in itself might even be spelt out in the labor certification application submitted with the EB-2 based I-140 petition, this for the purpose of validating the requirement of a bachelor’s degree and the existence of ample work experience (usually 5 years and above). However, this might not be acceptable to the USCIS as it might be seen not to meet the threshold requirement for qualification for the EB-2 I-140 petition.
Beneficiaries of the national interest waiver or EB2-NIW who are successful after filing a petition, are exempt from having their U.S employer file a labor certificate application after obtaining it from the Department of Labor.
To qualify for a waiver preventing your U.S employer from filing labor certification or the requirement to have an existing job offer before EB-2 visa can be granted, you will have to prove that your work or it potential is in the national interest of the United States. The burden to show that the applicants’ competence is in the best interest of the United States rests with the petitioner.
EB2-NIW Visa Eligibility Criteria
There are no clear precise criteria laid out by the U.S citizenship and immigration services for approving national interest waiver petitions. However, the USCIS administrative office (AAO) holds that a petitioner’s national interest waiver appeal may be granted when certain criteria backed with evidence are met:
- The competence in which the applicant is proposing has significant merit and is of national importance.
- The applicants’ exceptional ability in this field is such that it can advance said field moving it to greater levels.
- Waiving the job offer and national labor certification requirements is perceived to be valuable and indeed beneficial to the U.S.
It is worth stating that even though the applicant must show exceptional competence in his chosen field of expertise as well as show that his ability in this field is such that it can move this sector forward, there is no requirement necessitating the foreign national to show that he/she will succeed in the role taken up in the U.S.
Cost Associated With The EB-2 Visa Application
The application processing fee for employment-based immigrant visas collected by the Department of State as of September 2012 is US$405. The form I-140 (petition for alien worker) fee collected by USCIS is US$700.
The EB-2 visa category in addition to fresh applicants is also usually made up of spillover from the EB-1 visa applications this makes for longer processing as well as waiting time. There are criteria that have to be met before applicants are granted a visa under this status. What do you guys think? Would you be applying for a visa under the EB-2 category?