EB-2 Visa Classification
Employment-Based Immigration – Advanced Degree or Exceptional Ability with PERM Certification
Our attorneys can evaluate your eligibility for an employment-based, 2nd preference (EB-2) permanent worker visa if you are a member of a profession and you have an advanced degree or its equivalent, or if you have exceptional ability. This classification requires that the foreign worker be sponsored by a U.S. employer (the Petitioner) for a permanent and non-seasonal job.
Our attorneys guide corporate and institutional clients that desire to sponsor foreign nationals to come work in the U.S. on a permanent basis. We will advise you about whether the prospective applicant meets the requirements specified on the labor certification. We work with the organization to file a PERM (for the Program Electronic Review Management system) labor certification with the Department of Labor (DOL). By filing the PERM, we request the DOL to certify that there are no willing, able, and qualified U.S. workers available to fill the job offered to the foreign worker.
The PERM labor certification
Whether applying as a Professional, Skilled Worker, or Unskilled Worker, the foreign national must meet all requirements specified on the labor certification. Essential elements of the offered job for PERM application purposes are:
- The job title,
- Job duties and responsibilities, including any travel requirements ad any supervisory responsibility, and
- The minimum requirements to perform the job (such as education, experience, or training).
Our attorneys will prepare all documents and support letters required to demonstrate that the foreign employee qualifies for the offered job described in the PERM application.
The PERM labor certification involves 2 major steps:
- Recruitment: The sponsoring employer must advertise the job position and review resumes for more than 30 days, but less than 180 days, prior to filing the PERM application to ensure that there are no other qualified U.S. workers available. Advertising must include a Sunday newspaper listing unless no such listing is available in the area. This process involves compiling a record of copies of advertising placed, resumes collected, and notes about the process. There is no listing of acceptable journals or publications for recruitment.
- Prevailing Wage Determination: The employer is also required to offer at least the prevailing wage for the position, as determined by the DOL, based on the job requirements and location of employment. A prevailing wage determination from DOL must be obtained before filing the PERM application and after recruitment comes to an end.
The Immigrant Visa Petition
After the PERM application is certified, our attorneys work will work with you to prepare and timely file the immigrant visa petition, naming the foreign worker as the beneficiary, with the USCIS. For EB-2 classification, the foreign national can apply as an:
- Advanced Degree Professional. The foreign national must file documentation evidencing the he or she holds a foreign bachelor’s degree that is equivalent to a U.S. bachelor’s degree, plus five years of progressive post-baccalaureate experience, OR holds a U.S. or foreign master’s degree that is equivalent to a master’s degree in the United States.
- Individual with Exceptional Ability. A foreign national may provide documentation evidencing he or she qualifies as an “Individual of Exceptional Ability” in the sciences, arts, or business. Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. A foreign national can prove exceptional ability by filing documentary evidence that satisfies at least three (3) of the following criteria:
- Official academic record showing the foreign national holds a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability.
- Letters documenting at least 10 years of full-time experience in the occupation.
- A license to practice your profession or certification for your profession or occupation.
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
- Membership in a professional association(s).
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.
- Other comparable evidence of eligibility is also acceptable.
Acquiring LPR Status
Once the foreign worker establishes eligibility for permanent residence under the EB-2 category through the worker’s employer’s approved Form I-140 petition, our attorneys will evaluate whether the foreign worker can seek LPR status by filing either:
- An AOS application with the USCIS to adjust the worker’s lawful status from nonimmigrant to immigrant while in the US.
Depending on the specific circumstances, our attorneys may recommend filing an AOS application with the employer’s immigrant visa petition. This “concurrent” filing could offer added benefits for foreign workers already in the U.S., including faster processing times, allowing the foreign worker and their family members to obtain general employment authorization and permission to travel abroad, and protecting the foreign worker against unforeseen changes in employment by allowing them green card portability.
- Consular Processing at a U.S. consulate or embassy abroad.
The overall process through the PERM and I-140 Petition for the EB-2 is illustrated below: