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When applying to become a permanent resident in the United States via employment-based immigration, applicants are sorted into five distinct preference categories. The EB-2 preference classification constitutes the group of the second-highest preference employment-based visas reserved for immigrants who are considered professionals in their respective fields and have attained advanced degrees, or hold exceptional ability in the sciences, arts, or business.
Qualifying for the EB-2 visa program provides a significant advantage over those who are immigrating from one’s same country for employment purposes who cannot qualify for the EB-1 or EB-2 visa classifications. Despite existing restrictions that may cause visa wait times of over a decade for certain applicants in other preference classifications, the EB-2 visa category (as well as EB-1) is usually ‘current,’ meaning that visas are available to applicants soon after their immigration petition is approved.
The EB-2 preference classification has two distinct categories: professional foreign nationals who hold advanced degrees and aliens with “exceptional ability”.
Foreign nationals who first qualify for the EB-2 preference classification may further qualify for the national interest waiver. The national interest waiver permits a foreign national to pursue permanent residence without seeking labor certification and even without a job offer from an employer in the United States. Without the national interest waiver, all EB-2 immigrant visa applicants must undergo the arduous labor certification application process as well has have a secure, legitimate job offer from a U.S. employer.
To qualify for the national interest waiver, a foreign national must be able to demonstrate they are qualified for the EB-2 preference classification. To do this, they must either qualify as a professional with an advanced degree or as an individual with exceptional ability. To be considered a professional with an advanced degree, the foreign national must meet at least one of two criteria.
If the foreign national holds an advanced degree, which is considered to be a graduate degree or higher, they immediately qualify for the EB-2 under this criterion. If the foreign national does not hold an advanced degree, they may still qualify as a professional with an advanced degree if they hold a bachelor’s degree and have a minimum of five years of relevant experience in a field related to their degree. As a standard rule of thumb, the USCIS recognizes five years of relevant experience as equivalent to a master’s degree. If the foreign national does not hold a bachelor’s degree, they cannot claim years of work experience in an attempt to qualify for the EB-2 under this classification, as the USCIS does not recognize any amount of work experience to be a substitute for a bachelor’s degree.
To qualify as an individual with “exceptional ability”, the foreign national must be able to demonstrate that they hold a degree of expertise that is significantly higher than what is typically expected and encountered for a professional in their field. It is not required that one hold an advanced degree to claim exceptional ability, as that would immediately qualify them for the previous criterion.
Once the foreign national has qualified for either one of these criteria, they may then qualify for the national interest waiver. The national interest waiver cannot be attained by a foreign national who does not otherwise qualify for the EB-2 preference classification. Determining whether the foreign national qualifies for the national interest waiver depends on whether they pass the ‘three-prong test’ as outlined by the USCIS.
First, the work of the foreign national must have “substantial merit and national importance”.
Next, the foreign national must be “well-positioned” to continue this work once they immigrate to the United States.
Lastly, waiving the need for a job offer and for the labor certification application will be in the interest of the United States.
At the time of this publication, there is a limit of 140,000 available immigrant visas per fiscal year, regardless of whether conferred via immigrant visa processing or adjustment of status (AILA.2.1). Spouses and children of foreign nationals who seek immigrant visas in conjunction with the primary applicant (otherwise known as “derivative applicants”) equally count towards this number (AILA.2.1). The Department of State further stipulates that the number of immigrant visas approved in any quarter of the fiscal year may not exceed 27% of the annual quota, or maximum 37,800 immigrant visas conferred per quarter (AILA.2.2).
Applicants are also subject to a per-country limitation as well, where only seven percent of all immigrant visas, a maximum of 9,800 per year, may go to applicants from any given country(AILA.2.3). It should be noted that this is not the number of visas any given country is entitled to, but rather the absolute maximum their applicants may receive in any given year (AILA.2.4). Furthermore, applicants for immigrant visas are “charged” to the country in which they were born, not the country in which they hold citizenship, if different (AILA.3.6). The Department of State maintains that the current practice of per-country limitation is nondiscriminatory, but from an objective standpoint, applicants born in China, India, Mexico, and the Philippines face significantly longer wait times than applicants from other countries (AILA.3.3).
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for employment-based visas, with each receiving a set percentage of immigrant visas. The preference system exists as follows:
First preference (EB-1): Priority Workers —highly acclaimed individuals with extraordinary ability in their field, outstanding professors and researchers, international executives and managers (28.6% of visas allocated);
Second preference (EB-2): Professionals Holding Adv. Degrees and People with Outstanding Ability — applicants with graduate-level degrees, extended experience in their respective field, or outstanding ability in their profession (28.6% of visas allocated);
Third preference (EB-3): Skilled Workers, Professionals, and Other Workers — a very broad category that covers, for the most part, general applicants who do not qualify as (EB-1) or (EB-2) (28.6% of visas allocated);
Fourth preference (EB-4): Certain Specialized Immigrants — applicants who come from a set list of very specific and specialized backgrounds, there are many varieties of classified (EB-4) applicants, travel.state.gov should be consulted for the extensive list (7.1% of visas allocated);
Fifth preference (EB-5): Investors — applicants who have demonstrated interest and intent to invest in enterprises that will stimulate job creation in the United States (7.1% of visas allocated).
In a given quarter, if immigrant visas from one or more categories are underutilized, unused numbers can be transferred down from (E-1) to (E-2) or from (E-2) to (E-3), or transferred up from (E-4) and (E-5) to (E-1) and subsequently down to (E-2) and (E-3) (AILA.4.3). As a result, higher demand in the lower preference categories ultimately affects the number of allocated visas in higher categories (AILA.4.3).
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in line (AILA.6.3). The foreign national’s priority date is the same as the filing receipt date of their immigrant visa petition, and it determines their place in the queue relative to other applicants charged to the same country and in the same preference level (AILA.6.4). The earlier their priority date, the sooner their priority date will be “current”, at which point the foreign national can begin the next steps for immigrant visa processing(AILA.6.4).
A category is regarded to be “current” when the availability of immigrant visas exceeds the present demand, and thus there is no waiting period (AILA.6.5). For example: Say there are 20,000 (EB-2) applicants worldwide when there are 40,040 (EB-2) immigrant visas available. Typically, the (EB-1), (EB-2), and (EB-3) preference levels remain current, except for individuals charged to China and India (AILA.7.5). When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date (AILA.7.3).
The Department of State (DOS) publishes two charts as part of the Visa Bulletin on the DOS website: Dates for Filing chart and Final Action Dates chart. The charts are up-to-date guides on which priority dates are current; foreign nationals for immigrant visas with priority dates that land before the date listed in the chart are considered current. If the foreign national priority date is current based on Dates for Filing, these applicants should begin to prepare for immigrant visa processing as instructed by the NVC (AILA.8.4). But the immigrant visas can only be granted when the foreign national’s priority date is current under the Final Action Dates chart.
Before the foreign national begins to prepare their immigrant visa petition, they should reflect on their past experiences and determine how they will leverage their accomplishments in the application.
As outlined above, the foreign national must first qualify for one out of the two criteria for EB-2 and then additionally fulfill the three-prong test for the national interest waiver. Applicants should be mindful that the most successful applications do not just highlight what they see as the most impressive aspect of their background, but what provides the USCIS with the most compelling reason that this foreign national will become an asset to the United States if they are granted permanent resident status as well as why the USCIS should grant the permanent resident status without a preexisting offer of permanent, full-time employment (in most cases).
To qualify for the EB-2 visa preference classification, the foreign national must be able to provide evidence that they qualify either as an advanced degree professional or as an alien with exceptional ability. As an advanced degree professional, evidence of the advanced degree, or of a bachelor’s degree with at least five years of work experience in the relevant field will be sufficient. To demonstrate exceptional ability, the foreign national must satisfy three of the following criteria:
If the foreign national is unable to satisfy at least three of these criteria but believes that they hold exceptional ability that warrants consideration for the EB-2 preference classification, they may submit comparable evidence for the USCIS to consider.
Once the foreign national has established that they qualify for the EB-2 preference classification, they may begin to gather evidence to demonstrate eligibility for the national interest waiver. Organization is key for a successful immigrant visa petition, so when gathering evidence and crafting the application, it is recommended that the foreign national separate out their evidence for each part of the three-prong test.
The foreign national can come from any subject of expertise as long as they can demonstrate that their work has substantial merit and national importance. Successful applicants in the past have come from a variety of fields such as business, the sciences, technology, entrepreneurism, public health, and education, among others.
This first criterion of whether the foreign national’s work is of substantial merit and national importance is rarely challenged by the USCIS, but the foreign national should still take care to provide proper evidence to demonstrate this claim. ‘National importance’ should not be interpreted as subject of study that if the immigrant pursues in the United States, will benefit the entire U.S. population as a whole; rather, it should be interpreted as less about scale of the project and its geography and more about whether the ongoing work of the foreign national is in line with U.S. interests.
To gather evidence for this criterion, a good place to start is to put the work of the foreign national in context with the goals and interests of the United States. Consult U.S. statistics, government websites, news coverage, and/or prominent university research endeavors, to demonstrate a need for the foreign national’s skills. For example, perhaps the foreign national is a highly successful Indian immunologist seeking to further pursue a potential cancer treatment in the U.S., it would benefit this individual to research and compile incidence rates within the U.S. for the disease she studies as well as the demonstrated need of several research universities who are pursuing similar treatment research. Or perhaps the foreign national is a prominent Swedish researcher in international public health specializing in urban planning, it would benefit this individual to compile statistics regarding public health crises in urban areas as well as local and federal government attempts to respond to these issues.
Overall, the foreign national should seek to collect evidence that highlights why in the grand scheme of things, the work that the applicant has done and will continue to pursue will be beneficial to the interests of the United States. Evidence for how their future work will have a projected positive economic impact is not strictly required, but would never hurt to include in the application if the foreign national could come to this conclusion.
Articles, either in professional journals or on major media platforms, that detail the direct impact made by the field of work of the foreign national would be useful to include as evidence for this criterion. The articles do not have to detail the impact made by the work of the foreign national specifically, just by other professionals in the same field who are ideally working on similar topics.
In this second criterion, the USCIS will be looking to evaluate whether the foreign national is well-positioned to continue work on the endeavor they have proposed to pursue as a permanent resident in the United States. The first step is for the foreign national to outline exactly what is their proposed endeavor, specifically if granted an immigrant visa to the United States, what would they be seeking to work on as a continuation of their previous efforts in their field of expertise. The applicant should be specific in their intentions, distinguishing their work from others in their field.
To determine whether the foreign national is actually well-prepared to further their proposed endeavor if granted the visa, the USCIS will first be looking to confirm that the educational background, relevant skills and knowledge, and track record of the foreign national’s success in their field suggest that the foreign national is actually well equipped to follow through with the endeavor. To demonstrate this, the foreign national should include proof of educational experience, skills and experience in their field, and track record of success. Photocopied diplomas or transcripts and letters of reference from collaborators and employers should be sufficient.
Applicants should note that they are not required to submit any proof regarding the likelihood of success of their proposed endeavor. The USCIS is not evaluating whether the proposal is well-positioned to succeed, but rather whether the foreign national is well-positioned to pursue the proposal if granted a visa to the United States.
If the applicant has advanced skills, has received advanced training, or has graduated from a prestigious institution in a foreign country, this should be highlighted. Regarding prestigious institutions, applicants should always put this in context (i.e. national ranking of the school or of their specific department, etc.), as the USCIS officer adjudicating the application likely will not be familiar with the different university institutions in an applicant’s country of origin.
Similarly, if the applicant has been employed by a prestigious organization within their field, this should also be highlighted in the application, as this is an indicator that the foreign national will likely have future opportunities to contribute significantly to their field. As with a prestigious university, the status of the organization should always be put in context for the benefit of the presiding USCIS officer.
If the applicant works or has worked for an organization within the United States or even within a general field of study that has frequently received grants from the federal government to support research initiatives, this should also be highlighted in the application as it suggests that the applicant is likely to receive funding for their research in the future. This should be noted even if the applicant themselves has not been the recipient for such a grant yet.
If the applicant has already begun work on the proposed endeavor, this should certainly be included in the application as this communicates that the foreign national is objectively on track to continue the endeavor in the United States. Similarly, the foreign national should include whether they are currently a collaborator for any on-going projects in their field, especially any that relate to their proposed endeavor.
Lastly, foreign nationals should document any interest they have received from potential future customers, investors, research collaborators or any similar parties.
Beyond diplomas/transcripts and published works, foreign nationals should seek letters of reference when possible to corroborate their skill level and past experiences that would be beneficial in convincing the USCIS that the applicant is indeed well-positioned to pursue their proposed endeavor.
The major benefit of receiving a national interest waiver is that the foreign national is not required to have a permanent, full-time offer of employment in the United States and is not required to go through the arduous labor certification application process.
The catch, however, is that in the immigrant visa petition application, the foreign national must be able to articulate why waiving the labor certification application will ultimately be in the benefit of the United States.
Specifically, the USCIS will be looking to see whether the foreign national satisfies one or more of the following criteria:
First, due to the nature of the applicant’s qualifications or their proposed endeavor, would it be impractical for the foreign national to secure a permanent, full-time job offer or go through the labor certification application. This first criterion works very well for foreign nationals who hold roles where it would be counter-productive to tie them to a single employer in the process of securing permanent residence. Examples of this include self-employed inventors, actors, or artists. Similarly, this criterion can also be met if the foreign national’s unique combination of knowledge, experience, and skills cannot easily be articulated in a labor certification.
Second, regardless of whether minimally qualified U.S. workers who could serve as a substitute for the foreign national on paper exist, the country would still benefit from having the foreign national as a permanent resident.
Third, whether the urgency of the proposed endeavor requires that the labor certification application process be waived.
For the majority of applicants, this is the point in the application where the foreign national should seek to find a way to differentiate themselves from other prospective applicants for the EB-2 preference classification.
Several possible ways to illustrate this distinction are to include evidence such as:
This is not an exhaustive list by any means, but rather should be taken as a starting point for the foreign national to consider in what ways they can differentiate themselves in an effort to communicate to the USCIS that it is in the best interest of the United States to waive their need for a job offer and labor certification.
This also is an opportunity for the foreign national to think creatively on why it may actually be beneficial (and ideally, in the best interest of the United States) to not have a job offer when seeking permanent resident status. Perhaps the applicant is an actor, and it would severely diminish their diversity of opportunities if they were tied to a single agency as a permanent employer, and thus their ability to truly showoff their artistic mastery for American audiences would be impacted as well. Or perhaps the applicant is a researcher, ad committing to a single university would leave them unable to follow future grant money to better opportunity to advance their proposed endeavor.
As mentioned above, including reference letters in the immigrant visa petition application may significantly strengthen the foreign national’s case. To ensure the referee communicates the desired information in the reference letter, the foreign national should consider drafting the letters ahead of time. The letter should focus specifically on the foreign national’s influence and contributions to their field, and should stay away from general and subjective statements about the applicant’s personal qualities that reference letters otherwise may typically include. Reference letters should come from a mix of collaborators within the applicants own circle and external professional contacts that are familiar with the foreign national’s work.
The application should be highly organized to maximize the probability of success for the foreign national. Achievements of the foreign national should be prominently featured. A detailed table of contents will help direct the USCIS official to the most important aspects of your application.
Required Documentation
When the application has been completed to the satisfaction of the applicant, the packet should be submitted to the USCIS Dallas Lockbox. The mailing information can be found below:
If Filing Form I-140 Concurrently with Form I-485 [Application to Register Permanent Residence or Adjust Status]:
Once the immigrant visa petition has been approved, the foreign national is cleared to continue to their next step on the route to permanent resident status — immigrant visa processing or adjustment of status. Either route is open to all applicants with approved immigrant visa petitions.
Typically, foreign nationals already residing in the United States on a nonimmigrant visa (e.g. L-1 or E-2) will pursue adjustment of status, which involved filing for permanent resident status through domestic agencies. Foreign nationals seeking permanent resident status while still living abroad typically seek out immigrant visa processing, which involves applying for the immigrant visa through a U.S. embassy or consulate abroad.
These are not strict requirements, but are the norm — those living abroad may equally pursue adjustment of status, just as those living in the United States may pursue immigrant visa processing, each individual circumstance is different and foreign nationals should research both options to determine which will provide the best outcome.
Once the immigrant visa petition is approved, the employee’s spouse and unmarried children under the age of 21 may apply for permission to enter or remain in the United States under E-21 and E-22 immigration status, respectively, which also provides them with the right to work and makes them eligible for permanent residence in due course. The foreign national may file the E-21 and E-22 related applications directly or they may the employer may do it on his/her behalf (if applicable).
EB-2 petition denials occur typically when the application is not properly prepared or when the foreign national is not eligible to utilize the EB-2 preference classification. The majority of rejected EB-2 petitions are denied on technical grounds. Such denials can be easily avoided if the Form I-140 and supporting documentation are carefully compiled in accordance with published requirements.
A major issue that leads to the rejection of EB-2 immigrant visa petitions is that submitted information is inconsistent across different parts of the application and/or required documents are missing. Whether information inconsistency is enough to warrant the EB-2 petition’s denial is up to the consular officer reviewing the case. The presence of inconsistent information in the application or missing supporting evidence can put the entire application in jeopardy and may lead to a denial. The best way to avoid providing inconsistent information or missed documents is to proofread and double-check the application package carefully. If the consular officer encounters inconsistent information or missing documents, they may request additional information or may reject the application outright.
The next reason why one might be denied is because of one’s criminal record. As part of its EB-2 petition review process, USCIS conducts a thorough background check for the visa beneficiary. A criminal record (even minor infractions) in the United States or in the country of origin is likely to result in the denial of the EB-2 petition application.
An applicant also may be rejected because of a violation of visa status. Violations of visa status are taken very seriously by the USCIS. Typical violations include the foreign national overstaying their temporary employment visa or remaining in the United States after a tourist visa expires. Such “out of status” violations may have serious consequences for the applicant, as they may not only result in a bar on the individual’s ability to enter the United States but may also impact the individual’s ability to obtain other visas for a foreseeable future.
In cases where the foreign national is seeking a national interest waiver while holding a secure job offer, even if the foreign national is an ideal candidate for EB-2, the sponsoring organization may fail to meet the appropriate qualifications. Employers who are unable to demonstrate that they can offer the foreign national a full-time, permanent role that will pay proper wages will cause the applicant to be rejected by no fault of their own.
Finally, failure on the part of the applicant to provide the proper application fees can result in denial of the petition. Due to the changing filing requirements and fluctuating fee structures, some applications never reach the consideration or decision phase due to insufficient fees filed with the application. Applicants and sponsoring employers should always be careful and check the USCIS website for the most current fee breakdown.
If the immigrant visa petition is denied, the foreign national may consider refiling the application, pursuing the appeals process, seeking a reconsideration, or considering other application alternatives.
The refiling option is generally available when the petition is denied because of a minor error or omission, such as missing documents in the original application package, wrong location for the filing, or an incorrectly paid fee. The refiling is also an option if the USCIS denied the application due to lack of sufficient supporting documentation, and the foreign national has since secured additional supporting evidence to provide the USCIS with the refiling.
If the immigrant visa petition application was denied due to lack of eligibility, the refiling is likely to result in another denial and, therefore refiling would not be a good strategy. The denial of the immigrant visa petition be appealed to the Administrative Appeals Office (AAO), but this can take several years to result in a decision. Except in rare cases of blatant disregard for review procedures or a clear error on the part of the USCIS reviewer, AAO usually upholds the USCIS decisions anyways. The appeals process is only available to applicants who are presently residing in the United States and are in the country under nonimmigrant status. The decisions made by consular posts abroad generally cannot be appealed.
Another alternative is to submit a motion for the USCIS to reopen the case. This can be done if the foreign national can provide additional information that was not available when the petition was originally filed. Alternatively, the petitioner can claim that the reviewer was in error in denying the petition and a new consideration is warranted.
The motions to reopen or to reconsider are different from the standard refiling process. When the petition is refiled, it is done in response to the deficiencies identified by the reviewer. The request to reopen the case, on the other hand, is a request to look at the case again because of an error on the part of the reviewer. If the reconsideration does not yield a favorable outcome, alternative visa options must be considered.
Finally, if the national interest waiver route is determined to not be viable, the petitioner should consider alternative, albeit less advantageous, routes to permanent residence. It is possible to reapply under the EB-2 without the national interest waiver or apply for the EB-3 preference classification if the foreign national does not qualify for the national interest waiver. The major downside, though, is that if the rejected applicant decides to apply instead for EB-2 without the national interest waiver or EB-3, they will have to go through the time-intensive labor certification application process.