2nd Preference Option for Professionals

With the unavailability of visa numbers in the employment-based third preference (EB3) category, which means a wait for green card of about seven years, a viable option for qualified professionals from all countries, except India and China, is the second preference (EB2) category.

The EB2 category has a yearly worldwide allocation of 40,000 visa numbers, plus any unused visas in the first preference category. Visa numbers are currently available for all countries for this category, except China and India.

These visas are open to qualified beneficiaries in two subgroups: foreign nationals of exceptional ability in the sciences, arts or business and professionals with advanced degrees.

To qualify as advanced degree professionals, two critical requirements must be satisfied:  first, the alien beneficiary must be a member of the professions holding an advanced degree or its foreign equivalent; and second, the position must require, at a minimum, an advanced degree.

The advanced degree requirement is satisfied if the beneficiary has a U.S. master’s degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher. Lawyers and medical doctors may qualify as advanced degree professionals.

For those without a master’s degree, they may prove eligibility under the EB2 category, if they have a combination of a bachelor’s degree plus five years of progressive experience in the profession. This is considered by the U.S. Citizenship and Immigration Services (USCIS) as having the equivalency of a master’s degree.

A bachelor’s degree is a threshold requirement. Work experience cannot be considered in evaluating attainment of a bachelor’s degree. Moreover, the USCIS would consider one foreign degree equivalent and not a combination of degrees or a combination of education or experience to equate to a bachelor’s degree for professional positions.

“Progressive experience” is not defined by statute or regulation. The USCIS memo issued in 2000 interpreted it as, “employment experience that reveals progress, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

For those under the EB-2 sub-group of Exceptional Ability Workers, they need to show a degree of expertise in their field that is “significantly above the ordinary”. This is proven by any three of the following: degree relating to an area of exceptional ability, letter/s from current or former employer/s showing at least 10 years experience; license to practice profession; a salary or remuneration history demonstrating exceptional ability; membership in professional association; or recognition of achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.

Prior to applying for the EB-2 immigrant visa, a labor certification is required, but this requirement may be waived if the employment of the applicant will be in the national interest. To support a national interest waiver, the employer or the applicant may submit with the ETA 9089 form documents to show that the benefit to be provided by the alien will be national in scope, such as the improvement of the U.S. economy, improvement of wages and working conditions for U.S. workers, improvement of education and programs for U.S. children, improvement of health care and environment.

In one of our cases, we were able to obtain a national interest waiver for our physician client upon showing that he would be practicing in an underserved area.