The EB2 Visa/Green Card In The USA - Frear Law

THE EB2 VISA/GREEN CARD IN THE USA

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Benjamin Frear, Esq.

Practicing US Business Immigration Law Across The Globe

EB2 Visa in the USA—Overview 

The EB2 visa is available to foreign national professionals with advanced degrees or exceptional ability in their field. 

This category is allotted 28.6% of the yearly total for employment based immigrant visas to the United States.

eb2 visa requirements

EB2 Visa Requirements

 

Professionals With An Advanced Degree Or “Equivalent”

While those who are seeking an EB2 Visa commonly hold advanced degrees, those with an equivalent background can qualify as well. For example, a Bachelor of Arts/Science degree plus five years of progressive post degree experience is commonly accepted as an advanced degree equivalent. According to USCIS, progressive experience means… 

“employment experience that reveals progress, moves forward, and advances toward increasingly complex or responsible duties. In short, progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.”

Position Requirements

In addition to the educational requirement, the position in the US must require a professional with an advanced degree or equivalent in order to qualify for the EB2 Visa category. In other words, an employer must look to the position requirements—not the foreign national’s background—to determine if the EB2 category is appropriate.

Professional Positions

In order to qualify as a professional position, the work must require one of the occupations listed in the law at INA 101(a)(32). Alternatively, the employee could work in any profession that requires(at a minimum) a bachelor’s degree or foreign equivalent.

People With Exceptional Ability

In addition to professionals with advanced degrees, those with exceptional ability(who do not possess an advanced degree) can qualify for the EB2 category. Exceptional ability can be demonstrated if at least three of the following can be shown…Degree relating to area of exceptional ability;

  • Letter from current or former employer showing at least 10 years of experience;
  • License to practice profession;
  • Person has commanded a salary or remuneration demonstrating exceptional ability;
  • Membership in a professional association;
  • Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If none of the above factors apply, equivalent evidence can be used to show eligibility. 

Labor Market Test Requirements For The EB2 Visa

A test of the labor market(through the PERM process) is required for most EB2 Visa applications to show that there are no US workers who are willing and able to do the work. This will typically involve the following steps:

  • Requesting a prevailing wage determination from the US Department of Labor
  • Placing a job order with the relevant state workforce agency
  • Placing two Sunday newspaper ads for the position
  • Posting a notice for the position at the worksite

For professional positions, additional steps are required. An employer must complete three of the following recruitment methods:

  • Posting on the employers website
  • Participating in a job fair
  • Posting on a job search website
  • Placing an order with a private employment agency
  • Advertising with a trade or professional organization
  • Participating in an employee referral program with incentives
  • On campus recruitment
  • Working with campus placement offices
  • Posting in a local or ethnic newspaper
  • Placing radio and TV advertisements

eb2 visa without recruitment

The EB2 Visa Without Recruitment 

Given the time consuming nature of the advertising process, many employers are reluctant to go through the process of sponsoring an employee(or prospective employee) for a green card. Fortunately, there are some EB2 Visa applications that will not require government mandated recruitment. 

National Interest Waivers

National Interest Waiver Green Cards(NIWs) have a few huge advantages over traditional EB2 visa applications. 

One advantage is that self sponsorship is an option. In other words, the employer does not have to pay for the EB2 visa process or complete an application on behalf of the foreign national. This opens the door for self employed entrepreneurs and employees who do not have employers who are willing to shoulder the cost and effort that the process requires.

The other advantage is that recruitment is not required for those who qualify for the NIW.

While the perks of the NIW are enticing, the requirements can be difficult to meet. In order to show that it is in the national interest to have the foreign national in the US, applicants have to show that there is something unique about them that compels the US government to waive the traditional requirement of a labor market test.

The standard that is used by the US government for NIW cases requires proof that:

The applicant’s proposed field of endeavor has substantial merit and national importance

The applicant is well positioned to advance the endeavor

It would be beneficial to the US to waive the traditional requirements(recruitment and a job offer)

EB2 Visa For Schedule A, Group II Occupations

The US government has determined that—due to a lack of available US workers—the employment of foreign nationals in certain occupations does not hurt the US workforce. For these occupations—referred to as Schedule A, Group II—there is no requirement to test the labor market.

Conclusion

The EB2 Visa opens the door to a variety of talented foreign nationals who want to pursue their career in the US. Reach out to a knowledgable business immigration lawyer to help you determine if the EB2 would be a good fit for your situation. If you have any questions, please feel free to reach out to me at ben@frearlaw.com.