Foreign professionals wishing to immigrate to the US (as permanent residents) may do so under 3 general classifications:
• 1st Preference (EB1) – extraordinary ability foreign professionals; outstanding researchers and professors; and multinational executives and managers known as “priority workers”;
• 2nd Preference (EB2) – foreign professionals with advanced degrees and professionals of exceptional ability in the sciences, business or arts;
• 3rd Preference (EB3) – foreign professionals (those with BS or BA degrees) and skilled workers (including nurses).
Except for EB1, all workers need to go through a labor certification process which is now being done under what we call PERM (Program Electronic Review Management). Our previous articles have discussed labor certification/PERM, the procedures and processing time. In a nutshell, the labor certification/PERM is a process where the Department of Labor certifies there is a shortage in the foreign professional’s intended area of employment or there is no US worker who is able, qualified or willing to perform the proposed employment; and the foreign worker’s proposed employment will not displace a US worker and/or will not negatively impact the labor market.
The date of filing the labor certification/PERM application is the priority date for the sponsored foreign professional. The “priority date” determines when the foreign professional will get an immigrant visa at the US Consulate of the country of his citizenship. If the foreign professional is already in the US, the priority date determines when he can file for his green card through an “adjustment of status” application. Eligibility for adjustment is normally based on maintaining lawful status. Thus, generally, a foreign professional whose stay has expired is NOT ELIGIBLE to adjust. As of April 2015, the priority dates for employment-based categories (including other workers like caregivers, cooks, housekeepers, etc.) are illustrated in the chart above.
Most foreign professionals immigrate under the EB-3 category, and if they are already in the US, they need to maintain lawful status while waiting for their priority date. There are non-immigrant visas available that allow a foreign professional not only to remain in the US, but also to work; while waiting for his priority date that allows him to file for adjustment/green card application.
Advanced Degree Professional
A foreign professional with an advanced degree can migrate to the US under the EB-2 visa (employment-based, 2nd preference category). There is no waiting period for this visa and upon approval of a labor certification, the foreign professional can immediately adjust status (if already in the US) or apply for an immigrant visa abroad.
What is an “advanced degree?” It refers to any US academic or professional degree, or a foreign equivalent degree, above and beyond a 4-year bachelor’s degree.
But what if the foreign professional only has a foreign bachelor’s degree? He must get a US academic equivalency of his foreign degree and if he has at least five years of progressive experience in his field of specialty, he will be considered as having satisfied the advanced-degree requirement for an EB-2 professional.
However, migrating under the EB-2 category does not only depend on whether the alien meets the advanced-degree requirement. The more critical issue is whether the job itself requires an advanced degree professional.
There have been many pitfalls in adjudicating EB-2 petitions on these 2-fold issues: First, does the job require an advanced-degree professional? Secondly, does the foreign professional possess an advanced degree as shown by a master’s degree or its equivalent?
If the job itself does not require an advanced-degree professional, the petition will be denied even if the alien beneficiary has a master’s degree, or has a bachelor’s degree plus 5 years of experience. Likewise, the petition will be denied if the alien beneficiary is not an advanced degree professional, even if the job itself requires an advanced degree professional. That is why employers wishing to petition, as well as intended beneficiaries of these employment-based petitions must always consult attorneys well-versed in employment immigration on how best to proceed with these kinds of petitions.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
