One of the common ways in which educated foreign workers get employment-based green cards in the U.S. is utilizing a category known as “EB-2.” This is the second (out of five) “preference” categories of U.S. immigrant visas – otherwise known as lawful permanent residence – otherwise known as a green card.
In fact, category EB-2 is split into two subcategories. We’re going to focus on the first one in this article, which is for members of the professions who have earned an advanced academic degree. The person must also either have a job offer from a U.S. employer or qualify for a "national interest waiver." This category is sometimes called EB-2(A).
(The second 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.)
Before the foreign national can apply for an EB-2(A) visa and green card, however, the U.S. employer offering the job must seek labor certification. 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 American 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.”)
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 meet are able to the qualifications for this category than for 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.
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 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. (See the Code of Federal Regulations at 8 C.F.R. § 204.5(k)(2).) 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 progressively over the course of the five years.
Special Challenges When the 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. The employer 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
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; 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 was gained subsequent to obtaining the bachelor’s degree.
National Interest Waivers
If the worker’s presence can be shown to be of benefit to the U.S. in the future, it may be possible to apply in this category without having a job offer or labor certification. In order to demonstrably “benefit” the U.S., the applicant will have to show that his or her there will have a favorable impact on the country's economic, employment, educational, housing, environmental, or cultural situation, or on some other important aspect of U.S. life. The impact must be national in scope – such 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, the applicant will need to demonstrate that the work will prospectively benefit the U.S. national interest to a substantially greater degree than a 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
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 to consult an experienced immigration attorney for help.