EB-2 EMPLOYMENT BASED GREEN CARD SECOND PREFERENCE, INA §203(B)(2), 8 USC §1153(B)(2)
One must be a person with exceptional ability in the sciences, arts, or business, or an advanced degree holder to be eligible for a green card under the EB-2 category. An advanced degree means a master’s or higher degree from an American university or its foreign equivalent. Alternatively, a person can demonstrate a bachelor’s degree with at least five years of progressive post-bachelor degree experience.
Aliens who are members of the profession holding advanced degrees or aliens of exceptional ability. (EB-21)
- The job offer must demonstrate that employment requires a professional holding and advanced degree or alien of exceptional ability;
- Labor certification must be approved or a person must obtain a waiver based on national interest;
- Individual must have an approved I-140 petition, filed by the employer or self-petitioned.
|Aliens holding advanced degree
Aliens with exceptional degree must demonstrate 3 of the following:
Use EDGE, Electronic Database for Global Education, a web-based resource for the evaluation of foreign educational credentials.
National Interest Waiver (EB-22)
Petitioner must show the following: (Matter of Dhanasar , has designated as precedential and the decision in Matter of New York State Department of Transportation, 22 I&N Dec 215 (Comm 1998) has been vacated)
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- He or she is well positioned to advance the proposed endeavor;
- On balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.
The foreign national’s proposed endeavor has both substantial merit and national importance;
An occupation and the general work performed in the occupation does not constitute endeavor. The plain language of Dhanasar call an endeavor an undertaking. One has to explain specific undertaking. The petitioner needs to show that he or she has a job offer in the U.S. or specific project. The petitioner needs to submit business or professional plan so USCIS is able to determine if the petitioner’s contribution would benefit the organization he is employed with, have an impact on a local level, or if her endeavor would or have an impact of U.S. national importance.
It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable. The examples of such could be endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
To determine whether the proposed endeavor has national importance, the USCIS shall consider its potential prospective impact. “An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”
In determining national importance, the relevant question is not the importance of the field, industry, or profession in which the individual will work; instead USCIS focuses on “the specific endeavor that the foreign national proposes to undertake. ” SEe Dhanasar, 26 I&N Dec. at 889.
Factors that may be considered in determining national interest include, but are not limited to:
- Improving the U.S. economy, particularly in an economically depressed areas;
- Improving wages and working conditions for U.S. workers;
- Improving education and training programs for U.S. children and under qualified workers;
- Improving health care;
- Providing affordable housing in the U.S.;
- Improving the environment;
- Request from an interested U.S. government agency.
He or she is well positioned to advance the proposed endeavor;
The petitioner’s education, skills, knowledge and record of success in related or similar efforts. He or she could provide some business plan for future activities and demonstrate progress towards achieving the proposed endeavor. USCIS should consider the interest of potential customers, users, investors, or other relevant entities or individuals.
In recognition of the challenges presented in attempting to forecast feasibility or future success, the USCIS shall not request that petitioners will be required to demonstrate that their endeavors are more likely than not to ultimately succeed.
Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
Alien must possess unique knowledge or abilities that set him or her apart from other professionals and he or she will use these attributes in activities that will significantly benefit the Nation.
On balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.
The court in Dhanasar recognized the intent of Congress to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. But, on the other hand, Congress also created the NIW in recognition of the fact that in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest. These two interests need be balanced within the context of individual NIW adjudications.
The USCIS has to analyze factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
The national interest must be adversely affected if a labor certification were required. Alien must submit sufficient proof that your contribution is significant, and the time taken for a traditional labor certification process would severely impair national interest.
The alien may submit documentation to prove his or case for a National Interest Waiver:
- Copy of Notice of Approval of current status (H, J-1, F-1, etc.);
- Current detailed resume including employment/research history (names, addresses, and exact dates of employment);
- Copies of college/university degrees and transcripts or notarized copies;
- Letters of recommendation from colleagues or other authorities in a related field (Include the author’s resumes);
- Copies of all the articles written by the applicant;
- Copies of any articles where applicant’s achievements were mentioned;
- Copies of any prizes an applicant had been awarded;
- Receipts demonstrating high salary or any other payments;
- Statement with the proposed endeavor (business or professional plan).
The petitioner must establish eligibility at the time of filing, and a petition cannot be approved at the later dateafter the petitioner becomes eligible a new se
Spouse and children of the aliens with approved petition under the age of 18 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the I-140 application process, spouses are eligible to file for an Employment Authorization Document (EAD).
Currently, immigrant visas are not available for Indian and Chinese Nationals in the EB-2 category, and they cannot adjust status until their priority date becomes current. However, for petitioners in H-1B status, H-1B status will be extended in 3 years increments.
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