Employment-based Second Preference as a Faster Option

Many Filipino professionals and skilled workers who are badly needed by US employers could not enter the US under the more common route referred to as the third preference employment-based immigration or EB-3. This category of workers had been mired in visa retrogression for some time now. Unless the US Congress comes up with a visa relief measure soon, it would take some five (5) years before these foreign workers can obtain their green cards.

Sponsorship of a foreign worker under the second preference category of priority workers (the, “EB-2), however, may be a viable option for qualified Filipino professionals or workers. The visa numbers under the EB-2 category for the Philippines are current which, in practical terms, implies that visa numbers are immediately available.

Foreign workers who may qualify for the EB-2 category fall under either of two (2) sub-groups: First, the so-called “advanced degree professionals” who are members of the professions holding advanced degrees or their equivalent; and second, the so-called “exceptional ability workers,” or those with exceptional ability in the sciences, arts or business who will substantially benefit the US.  An INS (now the US Citizenship and Immigration Services) regulation in 1995 included athletics in the EB-2 category.

Advanced Degree Professionals

A foreign professional may be sponsored by a US employer for a job that requires an advanced degree, which is defined by law as “any degree beyond the baccalaureate.”  The law further defines the “professions” as those occupations for which a US baccalaureate degree or foreign degree equivalent is the minimum requirement for entry into the occupation.

Foreign professionals who do not have a Master’s or doctoral degree, however, may still qualify as an advanced degree professional if s/he possesses a baccalaureate degree and at least five (5) years progressive experience in the field. The baccalaureate degree is an essential qualification and work experience may not be substituted for both the baccalaureate and the advanced degree.

“Progressive experience” has no official definition, but precedent cases have led to a legacy INS memorandum dated March 20, 2000 which states that “progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.”

Exceptional Ability Workers

Exceptional ability workers are those who have demonstrated a degree of expertise in their field that is “significantly above the ordinary.” To prove this, at least three (3) out of six (6) criteria provided by law should be met:

• An official academic record showing the alien 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;
• Letters documenting at least ten years of full-time experience in the occupation being sought;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
• Membership in professional associations;
• Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

Comparable evidence of exceptional ability may be submitted if the above criteria are not mets