The law allows foreign nationals to obtain a green card through employment if they qualify under one of five preference categories. The majority of applicants with professional skills fall under either the employment-based second preference (EB-2) or the employment-based third (EB-3) preference category.
Among these two categories, EB-2 tends to lead to a green card (lawful permanent residence) the fastest, because fewer people meet the qualifications for this category. With fewer applicants competing for a fixed number of visas, the wait until a visa becomes available is shortened. Due to the long waits for employment-based visas in general, a foreign national who qualifies for an EB-2 visa could likely obtain a green card a number of years sooner than a person who qualified solely for an EB-3.
There are two ways to qualify under the EB-2 classification. The first, which is the focus of this article, is for people who have an advanced degree. The second is for people who, through their exceptional ability in the sciences, arts, or business, are prospectively likely to substantially benefit the national economy, cultural or educational interests, or welfare of the United States.
To obtain an approved EB-2 visa of either sort, the foreign national must have a job offer and an approved labor certification. (However, if a foreign national qualifies under the second way described above, based on exceptional ability, that person may obtain what's called a National Interest Waiver, in which case a labor certification and job offer will not be required.)
As is evident from its title, in order to qualify for an advanced degree EB-2 visa, a person must have an advanced academic degree. A unique aspect of this visa is that the person does not need a graduate degree to qualify, because of how U.S. Citizenship and Immigration Services (USCIS) defines “advanced degree.” While the agency defines it as any degree above a baccalaureate, it additionally states, in its regulations, that a baccalaureate degree “followed by at least five years of progressive experience in the specialty shall be considered the equivalent to a master’s degree.” (8 C.F.R. § 204.5(k)(2).)
In addition to holding an advanced degree, a foreign national must, in order to qualify for this classification, wait until his or her employer obtains an approved labor certification, described below.
An approved labor certification is the U.S. Department of Labor’s confirmation that a position held by a foreign national is in a shortage occupation: in other words, that no U.S. workers meet the minimum requirements for the position. This will involve a long process in which the employer advertises and recruits for the position, perhaps interviewing (and ultimately rejecting) U.S. candidates.
A critical step in this process is what the employer lists as its minimum requirements for the position. It must state that the minimum requirements for the position are at least a master’s degree or a bachelor’s degree plus five years’ progressive post-bachelor’s degree experience. If, on the labor certification application, the employer states that it will accept a person who has anything less than a master’s degree or a bachelor’s degree plus five years of experience, the foreign national will not qualify for the EB-2 visa.
A lot of confusion surrounds this issue. If, for example, the employer lists the minimum requirement as a master’s degree or, in the alternative, a bachelor’s degree plus two years’ experience, the applicant will not be granted an EB-2 visa. Even though the employer listed the minimum requirements as including a master’s degree, the problem is that it simultaneously admitted that it would accept someone with less than a bachelor’s degree plus five years’ experience.
The foreign national must have met the minimum requirements prior to the employer filing the labor certification or, in most cases, prior to ever having been employed by the sponsoring company. The Department of Labor does not permit a foreign national to qualify for a labor certification position by using experience gained with the sponsoring employer unless the prior position was substantially different. Thus, if the foreign national is not in a substantially different position, he or she must have obtained the required education and experience prior to employment.
Also critical is that, if the foreign national is qualifying for the EB-2 visa based on having a bachelor’s degree plus five years progressive post-bachelor’s degree experience, it is important that the five years’ experience was gained subsequent to obtaining a bachelor’s degree.
If you are in fact eligible for an advanced degree EB-2 visa, the process of applying for it -- and more specifically, obtaining an approved labor certification -- can be difficult and complex. Thus, it is recommended that an attorney be consulted to assist with the processing of this visa.