One of the most common ways to obtain a Green Card is through a job offer from a U.S.-based employer. Employment-based Green Cards are divided into five preference categories. The second preference (EB-2) category includes two distinct classifications of aliens: (1) Aliens who are members of professions holding advanced degrees or their equivalent and, (2) aliens who because of their exceptional ability in the sciences, art or business will substantially benefit the national economy, cultural or educational interests or the welfare of the United States.
FOREIGN NATIONAL HOLDING ADVANCED DEGREE
A foreign professional qualifies for the EB-2 category if he or she holds either a U.S. academic or professional degree above that of a baccalaureate or the foreign equivalent of such a degree. Typically, a Ph.D. or a Master’s degree satisfy this requirement. Alternatively, the foreign professional can qualify for the EB-2 category by possessing a combination of a baccalaureate degree and five years of progressive (post-baccalaureate) experience in the profession. This is because a baccalaureate degree followed by at least five years of progressive experience in the specialty is considered to be equivalent to a Master’s degree.
FOREIGN NATIONALS DEMONSTRATING EXCEPTIONAL ABILITY IN THE SCIENCES, ARTS OR BUSINESS
In order to qualify under this category the foreign national must demonstrate a level of expertise significantly higher than what would ordinarily be encountered in the sciences, arts or business. In order to qualify under this category, the foreign national must provide documentation of three of the following:
- An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
- Letters documenting at least ten years of full-time experience in the occupation being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
- Membership in professional associations;
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
It must be noted that if the aforementioned documentation is not applicable, other comparable evidence of eligibility may be acceptable including expert opinion letters.
THE EB-2 GREEN CARD SPONSORSHIP APPLICATION PROCESS
Usually, the application process for an EB-2 Green Card requires sponsorship from a U.S. employer and involves three major steps:
- The PERM Labor Certification process.
- The I-140 Immigrant Petition for Alien Worker.
- The application for adjustment of status or, alternatively, the application for an immigrant visa at a U.S. consulate abroad.
As an alternative, a foreign national can request a waiver of the Labor Certification process (and the requisite employer sponsorship) if she can meet the relatively high bar of establishing it is in the best interests of the United States. This is known as the “National Interest Waiver,” or NIW and a thorough discussion of the EB-2 NIW can be found here. The following constitutes a discussion of the PERM process as well as the subsequent filings utilized by US Employers to sponsor employees for permanent residence with no requirement to meet the National Interest Waiver burden.
Step 1: the PERM Labor Certification process
The first step to obtain an EB-2 employer-sponsored Green Card is the PERM/Labor Certification process with the U.S. Department of Labor (DOL). This stage entails multiple steps itself. First, the U.S. employer must define the duties and minimum requirements of the permanent position offered to the foreign national. Then, the employer must submit a “prevailing wage determination” (PWD) request to the DOL. The DOL will then issue a determination as to the minimum wage that the sponsoring employer must pay the foreign national. The PWD is based on the specific job requirements and on the location of employment. Furthermore, the DOL, by regulation, requires an employer to test the U.S. labor market by advertising the position offered to the foreign national so to make it available to U.S. workers. This step is often referred to as the “recruitment stage” and the employer must perform specific steps in its advertisement efforts. The purpose of this stage is for the employer to determine that no qualified and willing U.S. workers were found for the position offered to the foreign national. At this stage, timing is crucial, as the PERM process does not consider ads older than 180 days. After the last recruitment effort ends there is a 30-day waiting period required before the employer can continue the process. This is so that the employer can continue to receive and consider applications for the advertised position. After the 30-day waiting period, the employer can move on to the next and final step of the PERM process, which is the filing of Form 9089 with the DOL. Form 9089 provides the DOL with information on the position offered (such as the worksite location, duties, requirements, prevailing wage and so on), on the employer’s recruitment process and on the foreign worker. It may take the DOL several months to adjudicate the PERM application. The DOL can (1) certify the PERM, (2) deny the PERM, or (3) audit the PERM. If the PERM is audited, the DOL may ask the employer for additional evidence. Once the PERM is approved, the employer can move on to the next step of the process, which is the filing of the I-140 petition with U.S. Citizenship and Immigration Services (USCIS).
Step 2: the I-140 Immigrant Petition
After the PERM/Labor Certification Application has been certified by the DOL, the second step in the employer-sponsored EB-2 application is for the employer to file the I-140 Immigrant Petition with USCIS along with the certified PERM/Labor Certification Application. The purpose of the I-140 Petition is to prove that the foreign national is qualified to fill the job position as well as to prove that the employer has the financial ability to pay the proffered wage to the foreign national. USCIS can take several months to adjudicate the I-140 Petition. However, upon payment of an additional fee, USCIS can adjudicate the Petition via “premium processing” within 15 calendar days. USCIS can (1) approve the Petition, (2) deny the Petition, or (3) request additional evidence, in which case the petitioning employer will be requested to provide additional evidence to support the eligibility for the EB-2 green card. Notably, the filing or approval of the PERM/Labor Certification Application or of the I-140 Petition do not authorize the foreign national to live and work in the U.S. Rather, he or she must await until the I-140 Petition is approved and a visa number is available, and then move on to the next and final step.
Step 3: the green card application through adjustment of status or consular processing
The final step in the green card process through employer sponsorship happens after the I-140 Petition is approved by USCIS. At this stage, the foreign professional can follow two different procedures. If the professional is already in the United States in valid status and an immigrant visa is available, he or she can obtain the EB-2 green card by filing an adjustment of status application. Alternatively, if the foreign professional is not in the United States, he or she can apply for an EB-2 immigrant visa at a U.S. consulate abroad once a visa is available.
HOW AN EXPERIENCED EB-2 VISA ATTORNEY CAN HELP
Our EB-2 Visa attorneys are highly skilled at helping clients navigate the immigration system, from gathering the necessary documentation through preparing for an interview and completing the final paperwork. Colombo & Hurd is dedicated exclusively to the practice of immigration law and we work collaboratively with our clients to help them achieve their goals. If you are interested in an EB-2 Green Card, contact our office today to schedule a consultation. Initial consultations can be scheduled online, or by calling our Orlando office at (407) 478-1111 or our Tampa office at (813) 444-1114.