Green Card By Way of an Employment Based, EB-2 Visa, I-140 Petition

PART 1:  To qualify for consideration as the beneficiary of an Employment Based 2nd Preference (EB-2) I-140 petition, the petitioned worker, to start, must qualify under one of two levels of achievement:

  1. The worker must document their receipt of an advanced or graduate university degree (beyond Bachelor’s) or equivalent, and with a corresponding job offer that legitimately requires the worker filling the position to have such a degree OR
  2. The worker can demonstrate “exceptional ability” by presenting 3 of the following classes of evidence below:
  • Proof of having completed a program related the worker’s area of expertise, such as a degree or certificate from a university, college or other academic organization,
  • Correspondence confirming at least 10 years of having worked full time in a role related the worker’s area of expertise,
  • Proof of licensure to work in the profession or position at issue,
  • Proof the of receiving compensation or salary reflecting the worker’s exceptional record of achievement,
  • Documentation confirming the worker is a member of a an association relating to their area of expertise,
  • Evidence of peer or institutional recognition of the worker’s record as an exceptional contributor to their field of expertise.
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Additional Information

More on eligibility for category 1 above: When it comes to qualifying for EB-2 visa classification via category 1 above, the worker can simply have a Master’s degree or higher, or possess 5 years progressive experience in their field of expertise post issuance of their Bachelor Degree
PART 2 : Once we determine that the worker qualifies for EB-2 visa via their education and/or experience, the parties then must determine whether the PERM/Labor Certification process must be availed of (where the unavailability of U.S. workers for the offered position must be documented)

PERM Application

Typically, an EB-2 I-140 petition will involve the parties having to include a Department of Labor approved PERM application after the employer tested the labor market and was unable to find a suitable U.S. worker to fill the position being offered. However, in some instances, the parties may be able to proceed with an EB-2 I-140 petition without a DOL approved PERM. That would be in situations where it can be documented that it would be in the “national interest” to waive or forego the DOL PERM Labor Certification process.

National Interest Waiver: as long as if it can be documented that the worker’s prospective contributions U.S. would be of significant benefit to the U.S., an EB-2 I-140 can be filed without proving the unavailability of U.S. workers i.e. an approved PERM application is not required. Moreover, a formal job offer from an employer is not even required, as long as the worker can document that he/she will be able to have the opportunity to carry out their skills and apply their talents in the field at issue.

National Interest Waivers are generally approved for professionals working in the sciences or other fields where a contribution of a society wide impact can be demonstrated. However, theoretically, the National Interest Waiver applicant can work in any field, as long as their talents and skills can be considered of “substantial merit and national importance”, that they will have a viable opportunity to advance their field of expertise, and the our nation stands to benefit in a meaningful, far reaching way from the worker’s contributions.

Spouses and Children

For any EB-2 visa filing, the petitioned worker is eligible to have their spouse and under 21 year old children included in their process and issued immigrant visas as derivative applicants, whether processed at a U.S. consular post abroad or via adjustment of status in the U.S.

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For the best results in filing an EB-2 visa permanent residence submission, prospective applicants are advised to contact experienced immigration counsel, like Richard Hanus of the Law Offices of Richard Hanus. That way, maximum insight into the process can be gained and avoidable mistakes can be avoided.