Who Qualifies for EB-2 Employment Visa?

EB-2 visas are available to professionals holding advanced university degrees and persons of exceptional ability in the sciences, arts, or business.

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) faster, because fewer people meet its qualification requirements. 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 several years before a person who qualified solely for an EB-3.

There are two ways to qualify under the EB-2 classification:

  • professionals holding advanced university degrees, and
  • persons of exceptional ability in the sciences, arts, or business.

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.)

EB-2 Visa Eligibility for Advanced Degree Workers

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.

Labor Certification Requirement in Category EB-2

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. Proving 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 these include 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 case 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.

Timing: When the Foreign National Must Have Met the Qualifications

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, or unless the employer can make a compelling case that it would not be feasible to train a new employee. Thus, if the foreign national is not in a substantially different position, or if the employer cannot make the “infeasible to train” case, the foreign national 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, the five years of experience needs to have been gained subsequent to obtaining a bachelor's degree.

EB-2 Visa Eligibility for Persons of Exceptional Ability

To qualify in the second subcategory of EB-2 visas, you must be coming to the U.S. specifically to work full-time in your field of expertise. With limited exceptions, you must have a definite, permanent job offer from a U.S. employer. Self-employment will not work for this category.

Labor certifications (a long and complex certification of the unavailability of U.S. workers discussed in Timeline of the U.S. Labor Certification Process) are technically required for this category. However, you can potentially avoid the need for labor certification by using the exception for national interest waiver cases, discussed below.

The exceptional ability subcategory of the employment second preference covers people in the sciences, arts, and business. It's easily confused with the employment first preference priority worker subcategory for persons of extraordinary ability. However, the requirements are slightly less narrow (though people with jobs in education and athletics are left out of this second preference subcategory).

Typical eligible workers might include economists, lawyers, doctors, veterinarians, physicists, market research analysts, geographers, mental health workers, and marriage and family therapists.

The main benefit of this subcategory is that you don't need to have received international acclaim in your field. Proven sustained national acclaim will meet the required standard. You must, however, still be considered significantly more accomplished than the average person in your profession.

Your spouse and your unmarried children under the age of 21 may also be eligible for green cards as accompanying relatives.

Will Labor Certification Be Required in Category EB-2?

If you can show that your presence will benefit the U.S. in the future, you might be able to apply without having a job offer or labor certification, through what's called a national interest waiver.

In order to “benefit” the U.S., you'll have to show that your work in the U.S. will have a favorable impact on its economic, employment, educational, housing, environmental, or cultural situation, or on some other important aspect of U.S. life. The impact must be national in scope—in other words, a public health researcher at a federal agency or a university would probably pass, while the same person coming to provide services at a local clinic would probably not.

You'll also have to show that, given your qualifications, it would be impractical to require that you have a job offer or to require that an employer pursue the labor certification process. The additional spin on this is to show that there is a sufficiently urgent U.S. interest in your field to warrant forgoing the labor certification process.

USCIS adopted this new standard in 2016 to replace the prior “substantial intrinsic merit” and “national in scope” criteria, which were difficult to interpret and created much confusion and uncertainty. As decisions trickle out from USCIS, initial indications (through 2019) are that USCIS is approving many of these petitions.

Seek Professional Legal Counsel

If you are in fact eligible for an EB-2 visa, the process of applying for it—and more specifically, obtaining an approved labor certification—can be difficult and complex. Thus, you and your employer would be wise to consult an attorney for guidance.

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