In U.S. immigration law, there are three employment based categories for green cards.
The first category, called EB-1, is for Priority Workers. Priority workers include aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers (the term “alien” means a person who is not a U.S. citizen).
The second category, called EB-2, is for professional workers with advanced degrees or aliens with exceptional ability. We have provided more information about these terms below. In general, the government generally views “exceptional ability” under the EB-2 category to be less difficult to prove compared to “extraordinary ability” under the EB-1 category.
The third category, called EB-3, is for professional, skilled, and unskilled workers.
The procedures for filing EB-2 and EB-3 green cards applications are very similar. Normally, U.S. business must agree to serve as the sponsor, which means that the business signs the application package and certifies to the government that it wants to employ the alien once the green card is approved.
Also, with EB-2 and EB-3 applications, the employer/sponsor normally must complete a process called “PERM Labor Certification” before it can submit the green card application. PERM Labor Certification is a process in which the employer/sponsor proves to the government that it cannot find a U.S. worker that is available to fill the position that has been offered to the alien worker. PERM Labor Certification often takes 1 year to complete.
In the EB-2 Category, there is a special exception in the law which allows the employer/sponsor to skip the PERM Labor Certification process. As a result, the employer/sponsor can immediately file the green card application for the alien worker. This reduces the overall processing time of the case by 1 year or more. In addition, this same exception also allows a foreign person to file a green card application without an employer in the U.S. and without a specific job offer.
A second benefit to skipping PERM Labor Certification is that the foreign worker may be able to qualify for temporary work authorization and a travel document within 3 to 7 months of filing the green card application (only if the alien worker is already in the U.S. with a visa or has been here with a visa that expired less than six months ago). At this time, it generally takes at least 5 months to get the temporary work authorization and travel document.
The temporary work authorization and travel document would be valid for 12 months and can be renewed while the green card application is pending. These authorizations would replace any temporary (nonimmigrant) visa that the alien worker has.
This special exception in the EB-2 Category is called a “National Interest Waiver”
In order to qualify for a National Interest Waiver, the foreign worker must work in the sciences, the arts, a professional position or business position and must show the following:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
The first requirement listed above focuses on the specific endeavor that the foreign worker proposes to undertake. The endeavor’s substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable. The government has provided examples of endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
To determine whether the proposed endeavor has national importance, the government has stated that it considers its potential prospective impact. An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. The key term is ‘national importance’ rather than ‘national in scope,’ so it is not essential to prove a broad geographic benefit.
An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.
The second requirement listed above shifts the focus away from the proposed endeavor and onto the foreign worker. The government has stated that it will consider factors including, but not limited to, the foreign worker’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. In recognition of the challenges presented in attempting to forecast feasibility or future success, the government has stated that petitioners (the foreign worker or the employer, if there is an employer) will not be required to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.
The third requirement listed above requires the petitioner to compare the benefit of protecting the U.S. labor supply by requiring a job offer and PERM Labor Certification with the benefits that will be in the national interest if those requirements are waived and the foreign worker is permitted to have permanent residence in the U.S.
The government stated that this analysis requires an evaluation of factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
The government has stated that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The government has stated that this requirement does not require a showing of harm to the national interest or a comparison against U.S. workers in the foreign worker’s field.
Unfortunately these requirements are somewhat vague and very unique in each case. For this reason, it is very difficult for anyone to provide a strong sense of whether a foreign worker will meet these requirements or not. Generally, the law firm has to with the foreign worker closely to try to develop strategies for showing he or she meets the three requirements above.
Assuming that the foreign worker can satisfy the requirements for a National Interest Waiver, he or she must still prove that the foreign worker qualifies for the EB-2 Category.
Remember, the EB-2 Category is for professional workers with advanced degrees or aliens with exceptional ability in the sciences, arts, or business.
If the alien worker has a master’s degree or Ph.D. in his or her field from a U.S. or foreign university, then the foreign worker often can easily qualify for the EB-2 Category as a professional worker with an advanced degree. However, the foreign worker may also qualify if he or she has four-year university degree (Bachelor’s degree) from an American or foreign university followed by at least five years of progressive experience in the specialty. This is often considered to be the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
In order to show that the alien worker is a professional worker with an advanced degree, the government requires the following items:
- An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
- An official academic record showing that the alien has a United States baccalaureate degree (4 year university degree) or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
If the foreign worker is applying for an EB-2 green card as a member of the professions, evidence is required to show that the alien worker is engaged in a “profession,” which is an occupation for which a four-year university degree or the foreign equivalent is the minimum requirement for entry into the occupation.
In the alternative, the alien worker can also qualify for the EB-2 Category by proving he or she is exceptional in the arts, sciences or business. For the EB-2 Category, the government defines “exceptional ability” as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
In order to prove this, the government requires at least three of the following:
- An official academic record showing that 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;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is 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;
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
If the above standards do not readily apply to the alien worker’s occupation, the government may accept other comparable evidence to establish the beneficiary’s eligibility.
This green card strategy is rarely used, but is clearly a strong option for alien workers who have achieved success or recognition for their work the sciences, the arts, a professional position or business position.
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