EB-2

the US employers may still file for EB-2 if they have exceptional abilities.

Exceptional Ability

The foreign nationals have exceptional ability if they can meet at least 3 of these criteria:

• Appropriate education for their profession
• Over 10 years of professional experience
• A professional license if one is required
• A high salary
• Membership in professional associations
• Professional recognition for contributions to their field
• And that the employer can afford to pay a salary similar to what US workers in their industry earn in their locality.

The Filing Process

To get an EB-2 green card, the US employer files a petition on behalf of their foreign national employee. Obtaining a green card through the employer is a 3-part process:

• STEP I: A PERM application is filed with the Department of Labor: First the employers request the Department of Labor to confirm the wages that should be paid for the jobs that the foreign nationals will work at. Then the employers conduct tests of the local labor market to prove to the Department of Labor that the employers cannot find US workers to fill their open job positions. Read more about the PERM process here.
• Filing Without PERM:
  Sometimes a test of the job market is not needed because the shortage in that industry is already known. For these positions, a PERM application does not need to be filed. There are 2 situations where we can file an EB-2 green card without first filing for PERM.
  • Schedule A Occupations: Some positions, such as nurses and physical therapists are in such a shortage nationwide that a labor market test does not need to be performed.
  • EB-2 Exceptional Ability Individuals: If the foreign national’s work is exceptional, we want them in the US. For exceptional professionals, we can file for an EB-2 green card without filing for a PERM application first. See here to read more about the National Interest Waiver.
• STEP II: I-140 Petition is Filed with the USCIS
  After the Department of Labor certifies the PERM application, the employer files an I-140 petition with the USCIS requesting permission to hire the foreign candidate for the position. At this stage, the USCIS will decide whether the foreign national has the qualifications to perform the job. The USCIS also makes sure that the employer is able to pay the wage rate that is prevailing for the job in that area.
• STEP III: Foreign National Files I-485 / CP
  The last step to get a green card approved is for the foreign national to prove that he is the type of person we want in the US. The government screens the foreign national’s background and personal history very carefully. People with criminal behavior, who have entered the US illegally, have connections to terrorist organizations or certain diseases can be denied green cards. If the foreign national is in the US, they file an adjustment petition (I-485) with the USCIS. If they are overseas, they file for consular processing with the Department of State (US consulate). Read more about I-485 and consular processing here.
  • Delay in Processing. There are several quotas for green cards each year. Each employment-based category has a quota. In addition, there are also limits on how many green cards are issued to nationals of different countries. Once the quota for that year is met, the government waits till the next year to process the remaining cases that have been filed. This creates a backlog for countries from where a lot of people are immigrating. For foreign nationals from Mexico, China, India and Philippines, it takes many years, sometimes over 10 years to complete this last step to get a green card.

• Green cards issued in this category are usually valid for 10 years and can be extended.
• Green card holders can file for citizenship 5 years after obtaining their green cards.
• Spouses and minor children get their green cards along with the foreign national.

For a deep dive into the government's processes, please visit the USCIS page dedicated to EB-2 green cards.

• EB-2 is a sure way of getting a green card. If you qualify (see above for the criteria) and if your employer can pay your wages, you are almost guaranteed a green card. Because of this, most employers prefer to use the EB-2 category to file green cards for their qualifying employees.
• Because this is one of the most common categories, the process is simplified and streamlined, with very few surprises. Unlike the EB1 category, where long legal memoranda are needed and thousands of pages of supporting documents are submitted, EB-2 petitions are usually short and lean, and quick for attorneys to create.
• Employees with Masters / BS+ 5 years, who qualify for H-1B temporary work visas also qualify for EB-2 green cards.

• If the employee received on the job training, the job description cannot mirror what the employee is doing now. In those situations, we must look at the job the employer originally hired the employee to perform.
• Sometimes employees provide us with proof that they have the best qualifications out of all the candidates available for that job. Unfortunately, the rule does not ask for the most qualified candidate. If a US worker has lower qualifications, but can still do the minimum job duties, the green card for the employee cannot be filed.
• Sometimes employers eager to get their employees permanent residency try to prove that the job is so tough that they could not find local workers. Again, either the Department of Labor is going to push that job as a higher level (ie. the wages shoot up), or the Department will disqualify the job claiming that it is not realistic.
• When drafting a job description, attorneys also need to be mindful that if the description is too simple, it will attract a lot of candidates. If even one candidate qualifies for the position, the employer cannot continue with the EB-2 petition.

As attorneys, it is our job to know all the Department of Labor and USCIS rules related to job descriptions and to craft a job description that is both accurate and meets the legal criteria. At Immigration Desk, we have over 2 decades of experience drafting job descriptions that accurately capture the minimum requirements of the job and get green cards in EB-2 approved.

Employee is Qualified to do the Job

• Similarly, the employee’s background and qualifications have to be vetted thoroughly to make sure they do meet the job requirements. Most foreign workers receive their first college degree in their home countries. Sometimes the countries have 3 year degree programs. Sometimes the Masters degrees are only one year. These need to be evaluated carefully to make sure the employee will meet the EB2 standards.

Employer can afford the Salary

• For nationals of some countries, it takes many years to file the last step (adjustment of status/consular processing). For cases filed for these foreign workers, we need to make sure that the employer can show that they were able to pay the employees salary for each year since the green card petition was first started. (For a discussion of why it takes people of some nationalities many years to file for adjustment, please refer to the discussion on "priority dates" here.

Calculating the Right Time to File the Green Card

It is also crucial for an attorney to watch the process timeline. Attorneys must know the processing time of each step of the process. Foreign nationals on most work visas have limits to how long they can work on their temporary visas. If the green card is not filed on time, the foreign national’s work visa may expire and they may be forced to either leave the United States or change to an expensive visa to stay.

There are a host of different details, such as those mentioned above, that must be verified for a successful EB-2 filing. With over 25 years of experience handling work, investment and family immigration exclusively, we are well qualified to help with your green card filings.