EB-2 Visa for Advanced Degree Professionals: Who Qualifies?

One of the common ways in which educated foreign workers get employment-based green cards in the U.S. is through a category known as "EB-2." This is the second (out of five) "preference" categories of foreign nationals who are eligible for green cards (also known as immigrant visas or lawful permanent residence) based on the work they do. (See 8 U.S.C. § 1153(b)(2).)

In fact, category EB-2 is split into two subcategories. We're going to focus here on the first one, sometimes called EB-2(A), which is for members of the professions who have earned an advanced academic degree. The person must also either have received a job offer from a U.S. employer or qualify for a "national interest waiver."

(The second, EB-2(B) subcategory is for foreign nationals with exceptional ability in the sciences, arts, or business who are likely to substantially benefit the U.S. national economy, cultural or educational interests, or welfare in the future.)

Advantages to EB-2 Visa Category

An important advantage to obtaining a green card under category EB-2 is that the process often moves faster than in related labor-based visa categories. It's a simple matter of supply and demand: Fewer people are able to meet the qualifications for this category than for the others.

Given that the number of employment-based visas approved per year is limited by U.S. law, submitting an application in a category with lower demand can reduce the wait time significantly. A foreign national who qualifies for an EB-2 visa could potentially obtain a green card years sooner than an applicant who qualified for only an EB-3 visa, for example.

Applicant's Employer Will Need to Clear Labor Certification Hurdle

Before a foreign national can apply for an EB-2(A) visa and green card, in most cases the U.S. employer offering the job must seek labor certification. (The exception is for those persons who qualify for a "national interest waiver" of the labor certification requirement—see the discussion below.)

Labor certification is confirmation from the U.S. Department of Labor (DOL) that the employer has gone through an adequate recruiting process and rightly determined that no qualified U.S. workers are willing and available to take the job—thus necessitating that the employer turn to foreign sources of labor. (For more information on this process, see Procedures to Sponsor a Worker for a Green Card.)

Meeting the Academic Qualifications for an EB-2 Advanced Degree Visa

To meet the basic legal requirements for an EB-2(A) visa, the foreign national must have earned an advanced academic degree, such as a Master's, Ph.D., Juris Doctor (J.D. or law degree), or an M.D. (medicine).

In one situation, however, the foreign national does not need a degree beyond a baccalaureate. U.S. Citizenship and Immigration Services (USCIS)'s definition of "advanced degree" includes a B.A. or B.S. "followed by at least five years of progressive experience in the specialty," which it considers to be the equivalent to a master's degree. The "progressive" aspect of the experience means that the level of responsibility the worker exerted, the complexity of the tasks taken on, and the knowledge gained in that position must have increased over the course of the five years. For example, one way to show progressive experience is as an Analyst for three years and then promotion to Senior Analyst for the next two years.

Special Challenges When the U.S. Employer Seeks Labor Certification

Employers planning to sponsor immigrants in category EB-2 must take particular care when listing the minimum requirements for the position. They must clearly state that the minimum requirements are a master's degree or a bachelor's degree plus five years' progressive post-bachelor's degree experience.

If the employer says, for example, that the minimum requirement is either a master's degree or a bachelor's degree plus a mere two years' experience, that will not be enough to gain approval. And making this statement alone will not be enough: The employer will need to prove that the job truly does require such progressive experience.

Timing of Gaining the Needed Work Experience for EB-2 Visa

If the foreign national is relying on a B.A. plus five years' experience, there are some catches to be aware of. The worker must have met the minimum requirements before, not after, the employer files the labor certification application; and (in most cases), before having even been employed by the sponsoring company. The DOL does not ordinarily allow a foreign national to count experience gained with the sponsoring employer.

Also critical is that if the foreign national is claiming to have a bachelor's degree plus five years' progressive experience, the five years' experience must have been gained after obtaining the bachelor's degree.

National Interest Waivers for EB-2 Visa

If the worker's presence can be shown to be of benefit to the U.S. in the future, it might be possible to apply in this category without having a job offer or labor certification. See If Your Work or Expertise Will Greatly Benefit The U.S., Can You Seek a Green Card Without A Job?

In order to demonstrably "benefit" the U.S., the applicant will have to show that the work will have a favorable impact on the country's economic, employment, educational, housing, environmental, or cultural situation, or some other important aspect of U.S. life. The impact must be national in scope. This means that a public health researcher at a federal agency or a university might pass, while the same person coming to provide services at a neighborhood clinic would probably not.

The applicant will also need to prove that the field of work has "substantial intrinsic merit"—in other words, that it is worthy in and of itself. In addition, applicants will need to demonstrate that they will prospectively benefit the U.S. national interest to a substantially greater degree than any similarly qualified, available U.S. worker would. (Unfortunately, USCIS often reinterprets this requirement to mean showing that being forced to go through the labor certification process would actually have an adverse impact on the U.S. national interest. A local labor shortage is not considered to be an adverse impact.)

Get a Lawyer for Help With an EB-2 Visa Application

The process of applying for an advanced degree professional EB-2 visa can be difficult and complex, and involves successfully complying with numerous bureaucratic requirements in a time-sensitive manner. It's best for the employer to get help from an experienced immigration attorney, as many do. Prospective immigrants might want to separately consult an attorney, to make sure their interests are represented or if unsure which job to pursue.