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EB2 Visa for People with Exceptional Abilities

Employment-Based Immigrant Visas (Permanent Resident Status)

Professionals Holding Advanced Degrees or Persons of Exceptional Ability in the Arts, Sciences or Business: EB-2

This category is divided into two subcategories:

(1) Professionals holding an advanced degree (i.e., beyond a bachelor's degree), or a baccalaureate degree plus at least five years progressive experience in the field. Examples include lawyers, certified public accountants and other persons similarly qualified; and

(2) Persons with exceptional ability in the arts, sciences, or business. "Exceptional ability" means having a degree of expertise significantly above that ordinarily encountered in the field.

Generally, this category requires a job offer by a U.S. employer as well as a labor certification by the U.S. Department of Labor ("DOL"). The purpose of the labor certification application is to demonstrate that there are no U.S. citizens or U.S. permanent residents who are qualified and willing to work in that particular position.

Both the job offer and labor certification requirements can be waived if it is in the national interest to do so. This is called a national interest waiver ("NIW"). To qualify for an NIW, it must be shown that: (1) the employment will be in an area of intrinsic merit; (2) the proposed benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national. The exemption from the labor certification process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process, which is protecting jobs and wages for U.S. workers. If the foreign national is qualifying as a professional with an advanced degree, rather than as a person with exceptional ability, he or she must also submit evidence that his or her work is making significant contributions in her or her field.

The national interest is served if the employment does any of the following:

  • improves the economy
  • improves wages and working conditions
  • improves education and training programs
  • improves health care
  • provides more affordable housing for poor or elderly Americans
  • improves the environment and conserves natural resources
  • responds to a request from an interested federal government agency

Immigrant Visa Number Backlog

There is currently a backlog for immigrant visa numbers in the EB-2 preference category for applicants born in China and India. As of April 2011, the current wait time for an applicant born in China is just under five years. For applicants born in India, the current wait time is approximately five years. Priority dates in the EB-2 preference category are established when either the labor certification application is filed with the DOL or when the I-140 petition is filed with the U.S. Citizenship and Immigration Services ("USCIS"). Immigrant visa numbers are available for applicants with priority dates before the cut-off date published in the Visa Bulletin each month. Cut-off dates change monthly based on the Department of State's expectation of visa number usage. Thus, the amount of time an applicant must wait may change from month to month.

Premium Processing

On September 25, 2006, the USCIS began accepting Premium Processing requests for EB-2 petitions for members of professions with advanced degrees or exceptional ability. The USCIS excluded NIWs from Premium Processing. Under the Premium Processing Service, the USCIS guarantees that, for an extra $1,225 processing fee, it will issue either an approval notice, a notice of intent to deny, or a request for evidence or it will open an investigation for fraud or misrepresentation, within 15 calendar days from the date it receives the petition. If the .petition is not processed within 15 calendar days, the USCIS will refund the $1,225 fee and continue to process the request as part of the Premium Processing Service

How We Can Help You:

At Ferman Law, we discuss with our clients the feasibility and type of petition which is appropriate. We prepare the required forms and assist our clients with the collection of the extensive supporting documentation. Once all of the supporting documentation has been collected, we file our clients' petitions with either the USCIS Nebraska Service Center or the USCIS Texas Service Center. Thereafter we prepare our clients' immigrant visa applications or applications for adjustment of status. An immigrant visa application includes a medical examination by a physician approved by the U.S. Embassy and a visa interview at the U.S. Embassy. An application for adjustment of status includes a medical examination by a civil surgeon. Ordinarily, the requirement for a personal interview at the USCIS is waived when the application for adjustment of status is based on employment.

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