Due to the significantly shorter processing times than other categories, the EB-2 classification is highly sought after by talented immigrants. In comparison to the EB-3 immigrant category, which currently takes about seven years for Filipinos, the EB-2 category is now current for processing and the Green Card can typically be obtained in about one year to 18 months. The time period is shorter if the applicant qualifies for a National Interest Waiver.
There are three types of EB-2 immigration categories potential applicants should be aware of. While Advanced Degree and Exceptional Ability cases require a labor certification from the Department of Labor and a job offer from a US employer, National Interest Waiver typically cases do not.
Advanced Degree Professionals
In the most common EB-2 category, the foreign worker possesses and the job calls for an advanced academic degree (Master’s, Ph.D., Juris Doctor (J.D. or law degree) or an M.D. (medicine). The definition of “advanced degree” includes B.A. or B.S. “followed by at least five years of progressive experience in the specialty”.
It is important to note that the five years of experience used to qualify must be post-bachelors. The experienced must be “progressive,” demonstrated by advancing levels of responsibility and knowledge in the specialty. The experience also typically must have been gained prior to commencing work for the petitioning employer. Work with the employer can only be counted towards the 5 years of post-bachelor’s qualifying experience if it is significantly (50%) different from the duties constituting the petitioned-for job.
Aliens of Exceptional Ability
While the priority EB-1 Green Card is for “Extraordinary Ability” foreign nationals, this EB-2 classification is for the mere accomplished mortals whose skills are “significantly above” others in the sciences, arts, or business. As with the EB-2 Advanced Degree Professional Classification, a test of the US labor market in the form of a labor certification on the part of the employer is required, as is a valid job offer. “Extraordinary” is shown by proving at least three of the following criteria:
• A degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
• 10+ years of full-time experience in the field
• Licensure or certification to practice the profession
• Salary or payment for services, which demonstrates exceptional ability
• Membership in professional associations
• Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
If the above standards do not readily apply to the occupation, comparable evidence can be used to establish eligibility.
National Interest Waiver (NIW) Professionals:
US immigration law provides priority immigration for individuals that will prospectively benefit the US’ economic, employment, education, cultural, environmental aspects to a substantially greater degree than a similarly qualified, available US worker would. Our immigration laws hold such individuals in a level of such high esteem that they can request EB-2 classification despite not having a job offer from a particular employer and without the need to obtain labor certification.
To qualify for the National Interest Waiver, the applicant’s work must have “substantial intrinsic merit” — that is, be worthy in and of itself. The applicant’s prospective impact must also be national in scope. While a public health researcher coming to work at a local clinic would have difficulty meeting the “national in scope” requirement, if the work is to be performed at a university or government agency, the position is more likely to qualify.
Understanding when and how to properly take advantage of the EB-2 classification can shave years off of waiting for an employment-based immigrant visa or Green Card. It is important to compare the EB-2 classification to EB-1 and EB-3 options, and understand its interaction with nonimmigrant categories, such as the H-1B, L-1, TN, and O-1 visas. Prior to heading down the employment immigration road, it is critical to have a detailed consultation with an experienced attorney that will take the time to meet with you in person for a detailed discussion of your qualifications, and explore all possible options.
***
Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.
