EB-2 Permanent Workers
EB-2 is an employment-based immigrant classification that allows foreign nationals with advanced degrees or exceptional ability to obtain permanent resident status through a U.S. employer. The U.S. employer must extend an offer of permanent, full-time employment. An approved labor certification application for the position is generally required.
There are two sub-categories of the EB-2 classification: (1) Advanced Degree; (2) Exceptional Ability. Eligibility for EB-2 can be established by meeting the requirements under either of the sub-categories.
The foreign national can satisfy the advanced degree requirement by having:
- U.S. master’s degree or higher (or foreign degree equivalent); or
- U.S. bachelor’s degree (or foreign degree equivalent) plus five years of progressive, post-bachelor’s work experience.
Foreign Degrees: Degrees received from a foreign academic institution must be evaluated to determine its U.S. equivalent. USCIS relies on the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRO) as a source for evaluating foreign academic credentials: https://www.aacrao.org/edge.
Progressive Experience: To qualify with a bachelor’s degree and work experience, the five years of work experience must show advancing levels of responsibility and knowledge in the specialty.
In the absence of an advanced degree, a foreign national can also qualify based on an exceptional ability in the sciences, arts, or business. (Athletes can qualify as having exceptional ability in the arts.) Exceptional ability in this context refers to a degree of expertise significantly above that ordinarily encountered.
To establish exceptional ability, at least three of the following types of evidence must be provided:
- An official academic record showing that the foreign national 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;
- Letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations;
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; and/or
- If the above standards do not readily apply, comparable evidence may be submitted to establish eligibility.
Schedule A, Group II: Schedule A is a list of occupation that the Secretary of Labor has determined to be in shortage. Schedule A occupation do not require a labor condition application to be filed with the Department of Labor but is filed directly with the USCIS with the immigrant petition. Group II of Schedule A is applicable to certain qualifying individuals with exceptional ability in the sciences and arts. A different standard for exceptional ability applies to these types of Schedule A, Group II petitions.
Labor Certification Application
Petitions seeking EB-2 classification generally requires an approved labor certification application filed with the Department of Labor. The U.S. employer must obtain this approval before filing the immigrant petition for the foreign national.
The labor certification application is a process of making sure that no U.S. worker is willing, able, and qualified for the position offered to the foreign national. This process is aimed at protecting the interest of U.S. workers and involves testing the domestic labor market through a series of recruitment activities. The labor certification application is administered through the “Program Electronic Review Management” system, more commonly known as PERM.
To begin the labor certification application process, the U.S. employer would first obtain a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC). The PWD provides the employer the minimum compensation required for the position offered. The purpose of the PWD is to deter employment of foreign nationals at less than competitive wages offered by similar employers in the area. In other words, the U.S. employer must be willing to pay at least the prevailing wage for the type of position offered to the foreign national.
Next, the U.S. employer must begin a series of recruitment steps to test the labor market for available U.S. workers. The exact steps required depends on whether the position is professional or nonprofessional. At a minimum, the U.S. employer undertake the following recruitment efforts:
- 30-day job order with the State Workforce Agency serving the area of intended employment;
- Two Sunday print advertisements in a newspaper of general circulation; and
- A Notice of Filing to be posted at the proposed job site for a period of 10 business days.
For professional occupations, the U.S. employer must select and implement three additional recruitment steps from a list of 10 options provided by the Department of Labor:
- Job fairs;
- Employer’s website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firm;
- Employee referral programs;
- Campus placement offices;
- Local or ethnic newspapers; and
- Radio or television advertisements.
During the recruitment process, the U.S. employer must review applications received from prospective candidates. The employer must contact prospective candidates that meet the requirements of the position for further evaluations of their credentials. Upon determining that no U.S. workers are qualified and willing to assume the position offered, the labor certification application can be submitted for approval.
Exceptions: There are two exceptions to the labor certification application requirement:
- National Interest Waiver: For foreign nationals who shall engage in activities deemed to benefit the national interest, the labor certification requirement can be waived. A waiver is also available to physicians working in federally designated shortage areas or certain veterans’ facilities.
- Pre-Certification: Schedule A occupations which includes nurses and physical therapists are pre-certified as shortage occupations by the Secretary of Labor and can bypass the labor certification process.
Unless the above exceptions apply, the labor certification application must be approved prior to the submission of the immigrant petition.
Ability to Pay
The U.S. employer must also demonstrate its ability to pay the wage offered. This involves providing evidence of the employer’s financial capacity from the date the labor certification application was filed (priority date). The employer can establish its ability to pay through financial documents (such as IRS filings) showing its net income or net current assets exceeds the wage required for the occupation. The employer can also demonstrate its ability to pay by showing that the foreign national is already being paid a wage equal to or higher than the wage required.
The U.S. employer must first obtain an approved labor certification application for the position offered (unless a waiver or Schedule A exception applies). Subsequently, an immigrant petition with documentary evidence establishing eligibility must be submitted to U.S. Citizenship and Immigration Services. Those already in the United States under lawful status may apply for an adjustment of status upon the approval of the petition and the priority date becoming current. If the foreign national is overseas, he or she must obtain an immigrant visa at a U.S. embassy or consulate.