Login
A foreign national may obtain an employment-based permanent resident status in the United States by qualifying under one of five distinct eligibility categories – EB-1 through E-5 – as established by the U.S. Congress under the Immigration & Nationality Act of 1990 (INA). The employment based immigration visa categories prescribed under INA focus on different qualification and experience of interested immigrants, prioritizing those of greater importance to the U.S. national interests. Different categories vary in minimum qualifications, the required steps and documentation for the application process, the role potential U.S. employers play in the process, the degree of scrutiny the candidates receive, and the probability of success.
The EB-2 permanent residence immigration visa classification is available for professionals with advanced degrees or those with “exceptional abilities” in the fields deemed valuable for the U.S. economy, when there is scarcity of U.S. workers with similar skills in the U.S. labor market; and who do not otherwise qualified under a higher preference category of EB-1, reserved for the very top achievers in their field at a global level, highly esteemed researchers and professors, and multinational executives who work for the U.S. affiliates of their foreign employers (8 CFR § 204.5).
The permanent residency status in the United States can be achieved via EB-2 employment-based immigration visa process relatively quickly, when interested foreign nationals have the requisite advanced education, experience and/or extraordinary ability in certain fields with low availability of qualified U.S. workers; and when there is a U.S. employer who is willing to offer a job and sponsor the foreign national for the opportunity.
The EB-2 immigration visa process requires an upfront investment of time and resources, because as a pre-requisite to an EB-2 visa application, a sponsoring employer must perform a ‘market test’ through the United States Department of Labor (DOL) Labor Certification process that would support the assertion of scarcity of available U.S. workers willing to do the job for which the foreign national is applying. Despite this Labor Certification requirement, however, applying as an EB-2 employment-based visa candidate has a distinct advantage. Once the DOL Labor Certification clearance is received, the EB-2 permanent residence visa can be secured quickly, because the pool of qualified and interested EB-2 applicants from most countries usually does not exceed the number of EB-2 immigration visas available in a given year. Even when there is a waiting period for certain EB-2 applicants from countries with large immigrant pools, it is still likely to be substantially shorter than the waiting period for foreign nationals who lack EB-2 qualifications and must apply under the lesser preference EB-3 visa regime.
The overall EB-2 process can be further streamlined for certain candidates who can bypass the Labor Certification process by seeking National Interest Waiver (NIW), as part of their EB-2 application petition, because their education and experience places them in desirable fields where the availability of U.S. workers is presumed to be scarce. This article will focus on the standard EB-2 qualifications and application process only, and will not cover the NIW process in detail, but it will touch briefly on the distinctive characteristics of potential NIW candidates.
Foreign national professionals with advanced degrees and individuals with exceptional abilities in science, arts or business may qualify for EB-2 permanent residence employment-based visa regime. Professional athletes with exceptional ability may qualify under ‘arts’ for EB-2 purposes (AFM at 22.2(j)(3); Matter of Masters,13 I&N Dec. 125 (DD 1969); Legal Opinion, Aleinikoff, General Counsel, INS CO-203P (Jan. 20, 1995), reprinted in 72 No. 5 Interpreter Releases 175, 184 (Jan. 30, 1995)).
Foreign nationals who hold advanced degrees may qualify for an EB-2 employment based immigration visa, if other EB-2 criteria are met. EB-2 candidates who claim professional with an advanced degree eligibility must hold a graduate (master’s) degree or higher from an accredited U.S. educational institution or a foreign equivalent. If a foreign national does not hold a master’s degree, he/she may still qualify as a professional with an advanced degree for EB-2 visa application purposes, if he/she holds at least a bachelor’s degree and has a minimum of five years of relevant progressive experience in the professional field of the degree that he/she holds. If the job used as the basis for the EB-2 immigration visa application requires a doctorate (PhD) degree, the USCIS will accept no substation and a lesser degree (e.g. a master’s degree) plus several years of experience cannot qualify as an equivalent of a doctorate credentials for EB-2 advanced degree criteria purposes.
It is worth noting that while five years of relevant progressive experience in addition to a bachelor’s degree from a U.S. or a foreign institution of higher learning may qualify the applicant for an EB-2 visa, if the applicant does not hold at least a bachelor’s degree, no number of years of experience can cure the deficiency for EB-2 purposes under the ‘advanced degree’ eligibility requirement. In that instance, if other eligibility requirements are met, the candidate could apply under the EB-2 ‘exceptional abilities’ category or under EB-3 preference.
Foreign Equivalent of a U.S. Degree. Not every foreign national who holds an advanced degree is EB-2 immigration visa eligible, because (1) the degree must be of a type that is generally required for the profession used as a basis for the EB-2 application, and (2) the EB-2 candidate must have a job that requires such an advanced degree. Who is a professional under EB-2 visa preference criteria is defined in INA §101(a)(32), 8 USC §1101(a)(32); 8 CFR §204.5(k)(2), but whether or not a particular degree is ‘required’ for a profession is not always straight forward. For example, a master’s degree in Computer Science is a typical requirement for a computer engineer, but both master’s degree in Accounting and in Business Administration may serve as a basis for a senor accounting job. A senior instructor in Chemistry would qualify as a professional (a teacher) under the EB-2 eligibility requirements, and the job may be performed without the master’s degree in Chemistry but with an advanced degree in Engineering. The position being offered may be of a senior professional, but unless it actually requires an advanced degree, it would not be the basis for an EB-2 immigration visa application.
A foreign national seeking to apply for an EB-2 employment based immigration visa should carefully consider whether and how his/her educational credentials would meet the EB-2 requirements. If a foreign national holds a baccalaureate, a master’s or a doctorate degree from a foreign educational institution, it should not be assumed that such degree would be considered as a “foreign equivalent” for EB-2 immigration visa application purposes. Whether a degree is a ‘foreign equivalent’ for EB-2 visa purposes is determined by the United States Citizenship and Immigration Service (USCIS), the agency of the U.S. Department of Homeland Security (DHS) that is tasked with vetting and approving immigration visas under the INA. The USCIS reviewer responsible for the processing of an EB-2 visa application would rely on the Electronic Database for Global Education (EDGE) maintained by the American Association of Collegiate Registrars and Admissions Officers, to determine whether a degree from a foreign source is actually equivalent to the level and complexity of learning to a U.S. sourced advanced degree. Educational systems in different countries and on different continents confer degrees that may share similarities in names, but not always in the scope of learning. For example, a law degree in the United States takes three years to obtain after the individual completes his/her bachelor’s degree credential, while in the United Kingdom the law degree may be obtained after only three or four years of undergraduate study. These two degrees are not considered equivalent even though the graduates can practice law in their respective countries after completing their corresponding courses of study. Another example is a bachelor of science degree from an Indian university, which takes only three years to complete. EDGE does not consider it to be an equivalent of a U.S. bachelor of science degree. The access to the EDGE resource is available to EB-2 applicants; and those planning to seek a permanent residence immigration status based on an EB-2 eligibility should review their educational credentials and determined whether their degree would be considered as at least a master’s degree equivalent to enable them to meet the advanced degree requirement of the EB-2 visa.
Foreign nationals with “exceptional ability” in variety of fields may also qualify for an EB-2 employment based immigration visa, if other EB-2 criteria are met. Under this category, the foreign national must be able to demonstrate that (a) he/she holds a level of expertise that is “significantly above that ordinarily encountered in the sciences, arts, or business” (8 CRF §204.5(k)(2)) and (a) because of this exceptional ability will “substantially benefit the U.S. national economy, cultural or educational interests, or welfare of the U.S.” in the future.
To meet the ‘exceptional ability’ criteria the foreign national must demonstrate at least three of the following six different eligibility factors: (1) hold a degree or a program completion certificate from a college, university, or a professional school related to the subject matter of the claimed ‘exceptional ability’; (2) have at least 10 years of full time experience in the professional occupation, where the ‘exceptional ability’ is claimed; (3) have a license to practice the profession; (4) has/had remuneration for services that reflects the ‘exceptional ability’ (i.e. the compensation that is ‘significantly above’ others in the field); (4) hold memberships in professional associations specific to the field of ‘exceptional ability’; (5) demonstrate recognition for professional achievements and significant contributions to the field from professional peers, prestigious subject matter focused organizations, or government entities; or (6) other comparable evidence of ‘exceptional ability’ as determined by the USCIS (8 CFR §204.5(k)(3)(iii)).
Having an advanced degree is not a requirement for ‘exceptional ability’ eligibility, because if the candidate holds such a degree, he/she would already be eligible under the EB-2 ‘advanced degree’ category. As further covered in the section on Standard of Review for the EB-2 I-140 Petition in this article, it is generally easier receive USCIS approval for the EB-2 immigration visa on the basis of the advanced degree qualification than to meet the subjective evaluation criteria and greater scrutiny associated with the ‘exceptional ability’ EB-2 eligibility.
Whether the EB-2 immigration visa applicants are applying by leveraging their advanced degree or by claiming ‘exceptional ability,’ in most cases, they can obtain permanent residency only if there is a U.S. employer with a job opportunity that matches the applicant’s education and experience and who is willing to sponsor the foreign national for the job.
Since the EB-2 immigration visa availability is predicated on the perceived need to hire foreign nationals because there are no qualified and available U.S. workers willing to perform the job that a sponsoring employer is trying to fill, the EB-2 immigration visa process starts with United States Department of Labor (the DOL) permanent labor certification process (known as “PERM”).
The U.S. employer that is sponsoring an EB-2 immigration visa for a foreign national must submit a permanent labor certification application on Form ETA-9089 to the DOL's Employment and Training Administration (ETA). The purpose of the permanent labor certification program is for the DOL to certify to the USCIS, as part of the EB-2 immigration visa petition review, that there are no available U.S. workers qualified and willing to take the job position that the sponsoring U.S. employer needs to fill in the geographic location where the job needs to be performed; and that the employment of a foreign national for this job opportunity would not displace a U.S. worker.
The PERM process is effectively a ‘market test’ for the determination of whether U.S. professionals that meet the requirements of the job being posted, which falls within the EB-2 visa eligibility criteria, are available and are willing to accept the job on offer. That is done by advertising the job and actively recruiting potential candidates among U.S. workers. The Labor Certification determination is made by the DOL based on the documentary evidence that the sponsoring U.S. employer submits about the job on offer, the specific requirements of that job, how and where the position was advertised and recruited, and the U.S. workers’ applicant pool that is available for the job, based on those who responded to recruiting solicitations. The sponsoring U.S. employer must also demonstrate how/why those U.S. workers who applied for the position were not qualified for it, as compared to the petitioner foreign national’s qualifications.
The detailed documentation on how the job opening, subject to PERM, was advertised and how the U.S. candidates were recruited, assessed, interviewed and evaluated for the position forms the bases of the DOL’s evaluation and ultimately determines of whether the Labor Certification process succeeds or fails.
Job Description. The first step in the PERM process is for the sponsoring U.S. employer to develop a carefully crafted job description that accurately and in sufficient detail describes the job that the employer is seeking to fill. That job description will define the scope of the PERM review process and, therefore, it needs to be drafted with a view toward available labor in the jurisdiction where the job needs to be filled. If a U.S. applicant recruited through the PERM process has the credentials and qualifications to do the job as described and is willing to take the job, the Labor Certification is not going to be granted. At the same time, if the job description does not reflect the foreign national’s qualifications and experience or if it does not meet the requirements of the EB-2 immigration visa preference, the immigration petition is likely to fail.
Therefore, an effective job description in support of a successful Labor Certification application and an EB-2 immigration visa petition should be structured to address four separate and equally important parameters: (1) it must include all important qualifications, education and experience required for the job that the employer needs to fill; (2) it must appropriately reflect the advanced degree or ‘exceptional abilities’ that match the EB-2 immigration visa eligibility criteria; (3) it must outline job qualification requirements that the available U.S. worker pool does in the relevant jurisdiction is not likely to have; and (4) it must correspond to the qualifications, education, and experience that the foreign national that the sponsoring U.S. employer wishes to hire actually possesses.
With the job description completed, the PERM information collection process starts.
Job Posting. To be successful the job should be visibly promoted via customary recruiting channels using typical recruiting advertising methods that the sponsoring U.S. employer usually utilizes for other similar job postings in the location where work is expected to be performed, including internet job boards (Monster.com, Indeed), relevant state workforce agencies, newspapers, universities and professional associations’ employment boards, and the sponsoring U.S. employer’s bulletin boards and the intranet at the office where the job will be performed and whether the company posts other similar job opportunities.
Prevailing Wage/Working Conditions. For the job posting and the recruiting process to qualify under DOL’s PERM rules, the job must be offered at the prevailing wage for its location and include customary work conditions. The “prevailing wage” includes a combination of the base pay, benefits and overtime pay (if typical for the role) that professionals with advanced degrees and/or ‘exceptional abilities’ usually make for the same role in the geographic location where the sponsoring U.S. employer is expecting fill the job. The prevailing wage is determined based on statistical information that DOL routinely collects and maintains on its Foreign Labor Certification Data Center Wage Library website. The prevailing work conditions is a more subjective factor and their appropriateness can be demonstrated, if the sponsoring employer, or other employers in the relevant industries and locations, is/are offering similar jobs with the same work conditions (hours worked, time off offered, office and tools provided, travel required and class of travel).
The primary purpose of the inclusion of the prevailing wage and work conditions in the Labor Certification analysis is to demonstrate that the hiring of a foreign national does not displace a U.S. worker who is willing to take the job nor that the hiring of a foreign national would negatively impact U.S. workers through lower wages and less attractive work conditions; while also avoiding discrimination against foreign workers who may be willing to take the opportunity at lower pay.
Job Applicant Assessments. All U.S. workers who apply for the job opportunities, subject to PERM, must be assessed in the manner that the sponsoring U.S. employer usually assesses candidates through a recruiting process. While the employer does not need to interview those who clearly do not have the requisite qualifications for the job, as posted, in support of the PERM process the employer must document why the applicant was not considered. Those who appear to have the qualifications required by the job posting should be interviewed and assessed, just as in any other recruiting process. If they are not qualified and not offered the position, the reason for that decision must be fully documented. If the U.S. worker who applies for a position posted as part of PERM qualifies for the role and successfully completes the interview process, he/she must be offered the opportunity even though the job posting was made in support of the PERM process. The offer made should reflect prevailing market compensation and working conditions for the role; and the PERM process may proceed only if the U.S. worker candidate elects not to accept the job.
In testing the market, the sponsoring U.S. employer has no obligation to demonstrate that there are no available workers anywhere in the United States who have the education and experience necessary to meet the qualifications outlined in the job opportunity; the employer only must show that there are no qualified U.S. workers who are willing to take the job in the jurisdiction where they are needed by the sponsoring U.S. employer.
All steps undertaken to advertise the job opportunity and to assess and interview interested U.S. workers should be careful documented, and the evidence of these activities should be included as supporting documentation as part of the Labor Certification application on Form ETA-9089. This ETA-9089 application is signed by an authorized representative of the sponsoring U.S. employer who would be required to state, under the penalty of perjury, that the sponsoring U.S. employer was unable to recruit a willing and qualified U.S. worker for the job at the prevailing wage and that, therefore, it intends to hire a qualified foreign national for the same job at the same prevailing wages and work conditions, subject to the successful receipt of the Labor Certification from the DOL and the required employment based immigration visa approvals from the USCIS. The DOL will approve the Labor Certification, only if it is satisfied, based on submitted information, that the sponsoring U.S. employer had undertaking the recruiting efforts in good faith and that the recruiting process and its findings accurately represent the state of the labor market.
Once the Labor Certification application has been approved by the DOL, the U.S. employer will proceed to seek the immigration authorization from USCIS. The PERM certification has a validity period of 180-days. It becomes stale and expires, if not submitted to USCIS within this time period.
It is worth noting, that there are many practical considerations that must be taken into account when preparing for and running the Labor Certification process. Not doing this thoughtfully and correctly would result in considerable delays and may preclude the employer from being able to sponsor a qualified foreign national for the job for a long time.
USCIS EB-2 permanent residency immigrant visa regulations cover a few specific exceptions to this Labor Certification requirement.
If the foreign national’s experience and qualifications fall into a few unique professional categories that meet the stringent National Interest Waiver (NIW) requirements, the entire PERM labor certification process can be bypassed and the sponsoring U.S. employer may petition the USCIS for the EB-2 immigration visa for the foreign national via Immigration Petition for Alien Workers on Form I-140.
Foreign nationals who otherwise qualify under EB-2 employment based immigration visa regime may also qualify for the NIW if they meet the three-prong NIW test established by the USCIS: (1) the foreign national’s work must have “substantial merit” and be of national importance, (2) the foreign national must be “well-positioned” to continue this work once he/she immigrate to the United States; and (3) waiving the need for the labor certification application would be in the interest of the United States. Those who qualify for the NIW can not only bypass the PERM process but also do not need a job offer nor a sponsoring U.S. employer to qualify for the EB-2 immigration visas preference status. They can partner with a sponsoring employer on the EB-2 visa application process or they can self-petition via Immigration Petition for Alien Workers on Form I-140 without a formal job offer or a PREM certification.
A good example of foreign professionals who qualify under EB-2 NIW are foreign physicians who specialize in certain primary care practice areas (general medicine, pediatrics, internal medicine, obstetrics and gynecology) and who, after securing their EB-2 permanent residence immigration status, are willing to work for at least five years in underserved areas known as Health Professional Shortage Areas and Medically Underserved Areas (see, Nursing Relief Act of 2000; INA §203(b)(2)).
Once the PERM labor certification is secured from the DOL, the sponsoring U.S. employer (or petitioner in certain NIW circumstances) may file the Immigration Petition for Alien Workers Form I-140 with the USCIS. The I-140 immigration petition is made on behalf of the foreign national and includes an extensive set of information about the foreign national beneficiary, his/her personal and professional background, and the basis of the EB-2 immigration petition eligibility.
The I-140 petition supporting documentation must adequately reflect relevant educational credential, work experience, and other characteristics that are important to demonstrate the beneficiary’s EB-2 immigration visa eligibility. Whether the I-140 petition is based on advanced degree or ‘exceptional ability,’ the application must include (1) PREM labor certification from the DOL which is dated no later than six months prior to the I-140 petition submission date; (2) evidence of the bona fide offer of employment from the sponsoring U.S. employer including a detailed job description that corresponds to the labor certification received from the DOL (this requirement may be skipped if the petition includes supporting documentation for the NIW); (3) evidence of the sponsoring U.S. employer’s ability to pay the foreign national pursuant to the job offer made at the prevailing compensation rates (again this requirement may be skipped if the national worker self-petitions under the NIW); (4) professional resume of the foreign national applicant that appropriately reflects his/her education and experience in a manner that includes the requisite qualifications for the job offer from the sponsoring U.S. employer and the PREM labor certification (or the NIW criteria); (5) completed Application for Alien Employment Certification on Form ETA-750B, regardless of whether applicant has/required to have a job offer; and (6) the I-140 $700 fee.
In addition, to demonstrate EB-2 specific eligibility as a professional with advanced degree, the applicant must provide supporting documentation and evidence as follows:
To demonstrate EB-2 specific eligibility as a professional with exceptional ability, the I-140 petition application must include at least three of the following:
The sponsoring U.S. employer must also include documentation supporting the company’s financial wherewithal to pay the foreign national’s compensation, once he/she is employed by the company (the so-called “ability to pay” requirement). USCIS specifically requires that the employer “must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence” (8 C.R.F. §204.5(g)(2)). The documentation in support of this ‘ability to pay’ requirement may include annual reports, financial statements audited by a qualified independent accountant, and tax returns for several years going back to the I-140 petition’s “priority date.” For larger organizations with well-established reputations and known brand, USCIS may accept a written affidavit from the sponsoring organization’s chief financial officer as well as publicly filed periodic financial statements.
If provided supporting documentation is considered to be inadequate by the USCIS reviewer, the agency may deny the application or request additional support. The I-140 petition denial would result in material delays for the immigration visa application process. While the denial may be appealed or challenged with additional supporting documentation, such re-assessment process will take considerable time with no established timetable.
If the petitioner relies on the advanced degree for the EB-2 eligibility, the standard of review if very objective. The petitioner either holds or does not hold the required advanced degree or its foreign equivalent; the advanced degree and the professional background of the petitioner either matches or does not match the job description that the sponsoring U.S. employer used for the PERM labor certification; the job on offer either customarily requires the advanced degree that makes the petitioner eligible for EB-2 immigration visa preference or it does not; the sponsoring U.S. employer either has the demonstrated ability to pay or it does not.
The standard for review of the ‘exceptional ability’ is not as straight forward, because in addition to the objective review of licensing, education and the years of experience, the USCIS reviewer would also be called upon to assess how the applicant’s background and experience compare to others in the field and how and whether the applicant may substantially benefit the U.S. national economy, cultural interests, educational priorities, or welfare of the U.S in the future. This assessment, and especially the prospective substantial benefit assessment, is very subjective and open to interpretation. Therefore, while the petitioner is required to submit support for only three out of six possible exceptional ability criteria, as part of the application, the petitioner would be well advised to provide as many different supportive evidentiary documents as is relevant and possible given the specific circumstances.
The USCIS applies the so-called two-prong Kazarian test to assess the evidence regarding exceptional ability by first determining whether the petitioner meets at least the three threshold EB-2 ‘exceptional ability’ requirements and then whether the evidence submitted is sufficient to demonstrate that the petitioner meets the required high level of expertise and ‘substantial prospective benefit’ requirement (Policy Memo, USCIS, PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions, (Dec. 22, 2010) at 4, AILA Doc. No. 11020231 ).
As stated elsewhere, the EB-2 immigration visa application process is comprised of three steps each of which requires time to prepare and process the requisite documentation. The first step in the process is the PERM labor certification, which may take between six to twelve months to complete. The PERM process may be further delayed, if the DOL has concerns about how the sponsoring employer conducted the Labor Certification information gathering and elects to audit the employer. The time required for the PERM process may be avoided if the petitioner believes that she/he qualify for the National Interest Waiver. The NIW eligibility determination is performed by the USCIS at the same time as it does the EB-2 immigration petition review, as the NIW documentary support is filed as part of the Form I-140 Immigration Petition for Alien Worker submission.
The next step is the USCIS’s review of the Immigration Petition for Alien Worker on Form I-140. This process usually takes another six months to complete, plus the extensive time that may be required to identify and gather various documentation and prepare them in the form that would be accepted for USCIS review, including the documents’ translation into English where required. The sponsoring organization may expedite the EB-2 Immigration Petition review process by paying the premium processing fee, which would reduce the duration of this step in the application process to the mere 15 days. In April 2020, USCIS temporarily suspended the Premium Processing accommodation due to COVID-19 pandemic, but it is expected to be reinstated in the near future. The Premium Processing fee is approximately 2x of the standard Form I-140 filing fee and is paid in addition to the standard fee. Before making this expedited processing fee investment, the petitioner should consider the status of the I-140 petition’s priority date. If the priority date is not current, the expediting of the I-140 petition application’s consideration is not going to speed up the overall visa application process. The time required for the I-140 petition review may also be impacted by the USCIS workload and backlog and whether the reviewer is satisfied with the sufficiency of the provided evidence. The USCIS reviewer may request additional documentary support, if he/she deems the file to be incomplete or is not adequately supported. The reviewer may also deny the I-140 petition, if the documentary evidence is perceived as flawed. If the I-140 petition is denied due to insufficient supporting documentation, and the petitioner wishes to appeal the USCIS’ decision or to seek the re-opening of the case, the overall EB-2 evaluation timeline would be materially impacted.
Another important part of the visa application process that impacts the overall timing for the EB-2 permanent residency visa application is the immigration petition’s priority date. The priority date is the process that establishes the sequence (a place in the queue) in which different applicants applying for the same visa type from the same country qualify to receive their EB-2 visa (AILA.6.3). The foreign national’s priority date is set as of the date when the Immigration Petition for Alien Worker (Form I-140) was received by USCIS. The priority date becomes ‘current’ when the availability of the immigrant visa allotment in the petition preference category for the foreign national’s country of origin exceeds the relevant demand for that visa type (AILA.6.5). When the number of petitioners from a given country in the EB-2 visa category is greater than the available allotment, a wait list is created. The status of all priority dates for all visa categories, including the employment based visa categories like EB-2, can be determined by consulting the Visa Bulletin published quarterly by the U.S. Department of State (DOS). Except for a few countries that have a large pool of interested EB-2 immigration visa applicants (e.g. China and India), for most countries the EB-2 preference priority is ‘current’ or has a very short waiting period.
Finally, once the EB-2 Immigration Petition is approved and, assuming the applicant’s priority date is “current”, the final step in the EB-2 immigration visa application process can start and with the Application to Register Permanent Residence on Form I-485 is filed, and that starts the Immigration Visa Processing (IVP) or Adjustment of Status (AOS) process. This final step may take anywhere between four to six additional months and cannot be expedited.
Most EB-2 visa applicants from countries other than China and India can reasonably expect to receive their EB-2 permanent residence immigrant visa in twelve to twenty months, or even as short as six to eight months, if the National Interest Waiver route is taken.
Pursuant to relevant regulations, the annual allotment for all employment based immigration visas, regardless of preference, in the United States is 140,000 (AILA.2.1). The regulation also limits the number of employment based visas approved in any fiscal quarter to 27% of the annual quota (AILA.2.2). Moreover, the employment-based visas are further limited by their preference category with 28.6% set aside for EB-2 immigration visas.
In addition to these general annual limitations, all employment based visa applicants are subject to an annual per-country restriction. Only seven percent of all available employment based visas can go to any one country in a fiscal year (AILA.2.3). Visas issued to applicants born in one country but immigrating to the United States from another country count toward the annual allotment from the country of birth, not the country of citizenship of the foreign national applicant. For example, a visa granted to an Israeli citizen immigrating to the United States who was born in Ukraine, would count against the Ukrainian and not Israeli annual country allotment.
If employment-based immigrant visas from one or more preference categories remain unused in a fiscal quarter, they can be transferred between certain (but not all) visa preference categories. For example, EB-1 underutilized visas can be repurposed for EB-2 preference, but EB-1 underutilization cannot be used for EB-3 applicants (AILA.4.3).
The foreign nationals who are applying for permanent residence immigration status under the EB-2 regime may have their spouses and unmarried children, under the age of 21, apply for entry into the United States and certain work and immigration status, as soon as the foreign nationals’ I-140 petition is approved by the USCIS and while they are waiting for their priority date to become current and their adjustment of status application process to be completed. The spouse of an EB-2 immigration visa applicant can apply for E-21 visa status, while minor unmarried children can apply under the E-22 visa status. These visas allow family members to hold jobs in the United States and to travel freely, but they are immediately suspended if the primary applicant’s EB-2 immigration visa application is denied.