The EB-2 visa, or employment-based second preference visa, is ideal for professionals who have a graduate degree or its equivalent, as well as foreigners who have exceptional aptitude. They generally require a certification and job offer issued by the United States Department of Labor - DOL, in order to filter and protect US workers who are under the same professional conditions as foreigners; this protects workers and the labor market, so that applicants are not displacing US workers.
A self-employed person cannot apply for an EB-2 visa, since DOL regulations prohibit the issuance of such a certificate unless the applicant applies to the National Interest Waiver (NIW) classification. This classification exempts the applicant from the job offer requirement and therefore from the labor certification.
Table of Contents
WHAT IS ADVANCED TITLE?
WHAT IS MEANT BY EXCEPTIONAL ABILITIES?
ANNEX A APPOINTMENT PETITIONS
FORMS BY CLASSIFICATION
STATUS ADJUSTMENT
NATIONAL INTEREST WAIVER - NIW
FAMILY MEMBERS OF EB-2 VISA HOLDERS
ADVANCED TITLE
What does an advanced degree mean?
An advanced degree is understood as a graduate degree or its equivalent, as well as having a bachelor's degree with 5 years of certified experience. The job the applicant is applying for must require a graduate degree and you must have such a degree.
How to prove an advanced degree?
Official documents showing that you have a postgraduate degree or equivalent professional degree abroad.
Certificates from former employers that account for their experience exercising said title.
If you require a higher degree, that is, a doctorate, you must show documents that validate the degree either inside or outside the United States.
Process phases:
Labor certifications that attest to your experience in the advanced degree field are generally required. On the other hand, the petition must be accompanied by a request certified by DOL with the ETA 9089 form.
Your employer must submit reports to demonstrate your ability to pay wages until you get legal permanent residence approval within the United States, for this, you can submit documents such as tax returns or annual reports.
EXCEPTIONAL SKILLS
Who is a person with exceptional abilities?
Exceptional aptitude “means a degree of ability notably above that normally found in the sciences, arts, or business”
How to know if you are eligible or not?
you can qualify if:
you have exceptional ability in the sciences, arts, or business;
will substantially benefit the national economy, cultural or educational interests, or future welfare of the United States; Y
Your services in one of those fields are sought by an employer in the United States
To prove that you have exceptional abilities, you must meet one of the following requirements:
Certificate validated before any official institute of higher education, which shows that you have a university degree.
Labor certificates that account for your minimum experience of 5 years in the specialty in which you have focused.
License, diploma or official certificate that allows you to practice your profession.
Proof of having received a salary under the professional position mentioned above and certified.
Acknowledgments for achievements, significant contributions to the industry that is dedicated, as well as to peers, companies or professional organizations.
Process phases:
If your desire is to apply under the National Interest Waiver (NIW) classification, you will not have to submit the evidence requested in the advanced degree classification, since this classification waives the job offer, which indicates that you will not have to demonstrate an employer's ability to pay. There is no language requirement. However, the ability to communicate in English would include being well positioned to carry out the project.
ANNEX A APPOINTMENT PETITIONS
The U.S. Department of Labor, DOL, adjudicates Applications for Permanent Employment Certification (ETA Form 9089 (PDF), also known as permanent labor certifications. For certain occupations, the DOL has predetermined that there are not enough capable U.S. workers , willing, qualified, and available in accordance with regulation. These occupations are called List A occupations, and the process for satisfying the permanent labor certification requirement is called a "general" labor certification. DOL has predetermined that wages and conditions of similarly employed US workers will not be adversely affected by the employment of non-citizens in those occupations.
The following occupations comprise Schedule A:
1. Group I – physiotherapists and professional nurses
For Group I, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing):
A full and unrestricted permanent license to practice nursing in the state of intended employment
A certificate from the Commission of Graduates of Foreign Schools of Nursing (CGFNS)
Evidence that the beneficiary has passed the National Council for Registered Nurses Licensing Examination (NCLEX-RN) as of the date of submission.
Minimum requirements must meet all state licensing requirements. Alternatively, the employer may submit a letter or statement signed by an authorized state physical therapy licensing officer in the state of intended employment. This letter must state that the beneficiary is qualified to take the physical therapist written licensing exam.
2. Group II: Immigrants with exceptional ability in the sciences or the arts, including college and university professors, and immigrants with exceptional ability in the performing arts.
To demonstrate that a beneficiary has exceptional ability in the sciences or the arts (excluding the performing arts), the employer must submit documentary evidence of widespread acclaim and international recognition bestowed upon the beneficiary by recognized experts in the beneficiary's field. In addition, the employer must submit documentation showing that the beneficiary's work in that field during the past year required, and the intended work in, the United States will require exceptional ability. Finally, the employer must present documentation related to the beneficiary from at least two of the following seven categories, where “field” refers to the one in which the petitioner seeks certification of the beneficiary:
Documentation of the recipient's receipt of internationally recognized awards or awards for excellence in the field;
Documentation of the beneficiary's membership in international associations, in the matter, that require outstanding achievements of its members, in the opinion of recognized international experts in their disciplines or fields;
Material published in professional journals about the recipient, about the recipient's work in the field, which must include the title, date, and author of such published material;
Evidence of the recipient's participation on a panel, or individually, as a judge of the work of others in the same or a related field of expertise;
Evidence of the recipient's original scientific or scholarly research contributions of major importance in the field;
Accreditation of the beneficiary's authorship of scientific or academic articles published on the subject, in international professional journals or professional journals with international circulation; Y
Evidence of the exhibition of the beneficiary's work, in the field, in art exhibitions in more than one country.
For Schedule A, Group II occupations, an employer may seek to classify the position as an advanced degree professional or immigrant of exceptional ability. However, an employer may seek to classify the position as a skilled or professional worker if the position does not require an advanced degree or a person of exceptional ability.
Officers should not confuse the requirements to designate a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or the arts, including the performing arts) with the requirements to classify someone under the EB-2 category ( for immigrants of exceptional ability in the sciences, arts, or business). Although both the DOL and USCIS regulations refer to noncitizens with “exceptional ability,” each regulation defines the term “exceptional ability” differently.
DOL defines "exceptional ability" for the Annex A, Group II designation as "widespread acclaim and international recognition bestowed upon the alien by recognized experts in the alien's field." USCIS defines exceptional ability for purposes of the EB-2 category as "a degree of experience significantly greater than that normally found in the sciences, arts, or business."
The DOL standard for the Schedule A, Group II designation is therefore somewhat similar to that used to classify a person in the employment-based first preference (EB-1A) category (for immigrants with extraordinary). Despite this similarity, the standard for the EB-1A category is different from the standard for the Schedule A Group II designation. Therefore, officers must be careful not to misapply the standard for the EB-1A category to an application for Annex A, Group II designation.
The grant of the Schedule A, Group II designation is separate from the adjudication of the immigrant visa petition. Eligibility for Annex A, Group II designation does not guarantee approval of the petition itself, which must be adjudicated in accordance with applicable regulations. Meeting the requirements for the Schedule A designation only means that the petition met the permanent labor certification requirement. Officials have yet to make a separate determination as to whether the position and the recipient meet the requirements for the requested classification. In contrast, meeting the eligibility requirements for classification as defined by USCIS does not establish eligibility for the Schedule A, Group II designation under DOL regulations.
Precertified on list A
Due to the occupational shortage of these US workers, the DOL has "pre-certified" List A occupations. This means that an employer who wants to hire a person for a List A occupation is not required to take a labor market test and apply for a permanent labor certification with DOL. Rather, this employer must apply for Schedule A designation by submitting an application for permanent labor certification to USCIS along with the petition.
The DOL requirements for List A occupations are different from the normal requirements for other employment-based immigrant visa classifications. The fact that a petitioner can establish eligibility under DOL regulations only means that the permanent labor certification requirement is met. It does not mean that the beneficiary is eligible for the immigrant visa classification requested.
Eligibility Requirements for Schedule A Designation
The employer must offer permanent full-time employment to the beneficiary.
The job must be in one of the occupations categorized as a List A occupation.
The employer must offer the beneficiary at least the prevailing wage.
The employer must provide notice of the positions it seeks to fill to the employer's bargaining representative, if applicable, or to its employees.
The beneficiary must meet specific USCIS eligibility requirements.
FORMS BY CLASSIFICATION
1. General Permanent Employment Certification: Your employer must obtain a certified application for Permanent Employment Certification (ETA Form 9089) (PDF) from DOL before filing Form I-140, Petition for Alien Worker, with USCIS.
2. Schedule a general labor certification: For those with exceptional ability as defined by the Department of Labor (widespread recognition and international recognition) or certain nurse practitioners and physical therapists, the employer submits the petition to USCIS with an uncertified ETA Form 9089 to be processed. consider as Schedule A. What Happens After You Submit Your Form?
Once Form I-140 is received, the petition is processed and you will subsequently receive:
Notification of receipt of the request
Biometric services notification, if applicable
Notice to appear for an interview, if applicable
Decision notification.
STATUS ADJUSTMENT:
Once your petition is approved, you may apply to become a lawful permanent resident if a visa is available according to the Department of State's Visa Bulletin. You can do this by filing Form I-485 if you are in the United States, or by applying at a US consulate or embassy if you are outside the United States (this is called consular processing).
National Interest Waiver or National Interest Job Waiver (NIW): Those seeking a national interest waiver request that the job offer, and thus the labor certification, be waived, because it is in the national interest for the United States. Applies only to the second preference classification (EB-2) for members of the professions holding advanced degrees and persons of exceptional ability. This waiver of the job offer is known as a national interest waiver.
The efforts that qualify for a national interest exemption are not defined by law; however, USCIS considers the 3 factors below:
The proposed compromise has both substantial merit and national importance.
It is well positioned to advance the proposed compromise.
In general, it would be to the benefit of the United States to waive the requirements of a job offer and thus labor certification.
A petition filed with a national interest waiver request on behalf of an individual does not need to be supported by a job offer; therefore, the person may file as a self-petitioner. A waiver of a job offer also includes a waiver of the permanent labor certification requirement. However, to support the petition, the petitioner must submit the employee-specific portions of a permanent labor certification (without DOL approval). The petitioner can file ETA Form 750B or ETA Form 9089.
The petitioner seeking a job offer waiver must not only demonstrate eligibility for classification, but also demonstrate that the waiver itself is in the national interest. To establish eligibility, the petitioner must show that:
The person qualifies as a member of the professions with an advanced degree or as a person of exceptional ability
The waiver of the job offer requirement, and therefore the labor certification requirement, is in the "national interest."
*Those seeking a national interest waiver can apply on their own (they do not need to be sponsored by an employer).
FAMILY MEMBERS OF EB-2 VISA HOLDERS
If your I-140 petition is approved, your spouse and children under the age of 21 may be eligible to enter the United States under E-2-1 and E-2-2 immigrant status, respectively.
If you still have doubts about the EB-2 visa and its classifications, we invite you to request advice from a specialized consultant on the subject, who will guide you throughout the process and provide you with tools to be able to successfully complete your Visa.
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