THE EB2 VISA (OR EB2 GREEN CARD) IS FOR EMPLOYMENT-BASED “EXCEPTIONAL” ABILITY OR ADVANCED DEGREE PERMANENT RESIDENCE (SECOND PREFERENCE).
This Visa is available to two main types of applicant:
Members of professions who hold an advanced degree (or equivalent),
or those who can otherwise prove “exceptional ability” (i.e. expertise that is significantly higher than the norm) in their particular field, whether the sciences or arts, medicine, business, or athletics.
The EB2 Green Card is highly desirable because it can offer a relatively fast route to permanent U.S. residence. However, it does come under close scrutiny by USCIS, so you are strongly advised to hire an immigration attorney that has a track record in successful EB2 applications.
The legal spouse of an EB2 Green Cardholder may also be allowed to stay in the U.S. via an E-21 application. Minor children (unmarried, under 21) may apply for the E-22.
While the process of applying for permanent residency is ongoing, the spouse may apply for an EAD (Employment Authorization Document), which would give them the right to work in the United States.
ROUTE 1: ADVANCED DEGREE
The applicant is seeking employment in the United States that requires an advanced degree (or equivalent, e.g. a baccalaureate degree plus 5 years progressive experience in the field) and they have the required qualifications.
ROUTE 2: EXCEPTIONAL ABILITY
Alternatively, they must be able to prove exceptional ability in their area (arts or sciences, business, medicine, or athletics).
Exceptional ability is defined as “significantly above that normally encountered.” Evidence is required that meets at least three of seven criteria set by USCIS, which may include:
recognition in the particular field,
letters that attest to the beneficiary's experience,
professional association memberships,
or exceptional salary.
In either of the first two cases, the PERM process is required. This is a Labor Certification process where the U.S. Department of Labor (DOL) requires a market test be performed in order to prove there exist no qualified legal U.S.-based workers for the position in question.
However, the following third option (National Interest Waiver) provides an exception to the PERM requirement.
ROUTE 3: NATIONAL INTEREST WAIVER (NIW)
An alternative path to an EB2 Green Card is in the case of an individual who requests the usual Labor Certification be waived because it is in the interest of the United States.
In other words, the job offer requirement can be disregarded if it can be proved that it is in the “national interest.” In this instance, the job offer and Labor Certification may both be waived, which means the individual does not require a job offer and may petition for the EB2 directly.
NIW cases can be preferable to other employment-based green card options, however, they tend to be complex and involve extensive scrutiny by USCIS. For this reason, anyone considering this route must speak to an experienced immigration attorney before starting any application process.
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