EB-2 Visa | U.S. Green Card for Individuals with Special Qualifications or Abilities

• For the first subcategory, the applicant must have a degree that is higher than a U.S. bachelor's degree, e.g. a master's degree. However, the EB-2 visa may also be considered if the applicant has a U.S. bachelor's degree (or equivalent foreign degree) and five years of relevant professional experience. However, a lack of a bachelor's degree cannot be compensated for by professional experience.
   
• For the second subcategory, the applicant must demonstrate that they have exceptional abilities in their field, i.e. abilities that are significantly above the average for those working in their profession. Employees in the fields of education and – with certain exceptions – sports are not eligible for this subcategory. They would have to apply for an EB-1A visa.
   
• Applying for an EB-2 visa will only be successful if the U.S. employer can show that they were unable to find a preferred employee (U.S. citizen, person with legal permanent resident status) for the position they wish to fill with the applicant.
   
• The U.S. employer must pay the applicant at least 100 percent of the wage that is typically paid for a comparable position in the local area of the workplace. To determine this “prevailing wage,” the U.S. employer must submit a prevailing wage request to the local U.S. employment agency.

The EB-2 visa requires that the applicant can prove that they have a job offer and that the U.S. employer can show that they were unable to find any preferred employees. However, there is one exception to these two requirements:

If it can be shown that it is in the national interest for the applicant to come to the U.S., the above requirements may be waived and a National Interest Waiver may be applied for. However, the requirements are very strict, and “national” must be taken literally: it is not sufficient to show that the economy, the education system, or similar areas will benefit locally from the applicant. The activity in the U.S. must actually have a national impact. Even a mere “shortage of skilled workers” does not mean that professionals in the relevant fields can apply for a National Interest Waiver on that basis alone.

An EB-2 visa can be applied for as soon as all requirements are met. However, it is advisable to seek legal advice before submitting an application. In particular, the equivalence of any foreign degree to a U.S. bachelor's or master's degree must be checked. A number of U.S. organizations offer such equivalence checks.

Applying for an EB-2 green card involves three steps:

Step 1: Job advertisement by the US employer

Before submitting the petition, the U.S. employer must complete the following steps:

• The U.S. employer submits a prevailing wage request to the relevant employment agency.
• The U.S. employer advertises the position in two newspapers and at the local U.S. employment agency. Certain deadlines and formal requirements must be observed. In particular, the process also differs depending on which subcategory of the EB-2 visa is being considered. If applicants respond to the advertised position, the U.S. employer must conduct interviews and, if necessary, be able to show why the applicants were not suitable.
• If the position could not be filled, this is usually followed by the so-called Labor Certification Application, which the U.S. employer submits to the U.S. Department of Labor.

Step 2: Submission of the petition by the US employer

The U.S. employer submits the I-140 petition to the U.S. immigration authorities. Here, too, deadlines resulting from the approval of the Labor Certification Application must be observed.

Step 3: Application for a US green card by the employee

If the petition is approved, the employee may apply for a U.S. green card. There are two options for this:

• If the employee is already legally in the U.S., they can apply for an adjustment of status locally to change their status from “non-immigrant” to “immigrant.”
• If an adjustment of status is not possible or not desired, an immigrant visa is applied for at a U.S. consulate outside the U.S. (application fee: USD 345, as of August 2022). After paying a so-called immigrant fee of USD 220 (as of August 2022) and entering the U.S. with the immigrant visa within the specified time limit, the applicant will automatically receive the green card by mail at a U.S. address to be specified in the visa application process.

Spouses and children under the age of 21 of an EB-2 applicant can also obtain a green card.

Unlike non-immigrant visas, the validity of a green card does not depend on employment. For example, if a person is employed in the U.S. on an L visa and resigns or is terminated, they must generally leave the U.S. The situation is different with a green card: although an employer is required to go through the process with the applicant when applying for a job-based green card, once the green card is obtained, it is not dependent on a minimum period of employment or similar requirements.

Many applicants encounter recurring reasons for rejection of EB-2 applications. Problems arise particularly frequently when the documents do not precisely meet the requirements of the U.S. immigration authorities. Typical stumbling blocks include:

• Missing or insufficient proof of the equivalence of the foreign degree
• A job description that objectively does not require a higher academic degree
• Weak evidence of “special abilities” in the Exceptional Ability subcategory
• Contradictions between the resume, letters of recommendation, and submitted forms

Careful preparation and consistent documentation are therefore crucial to avoid unnecessary delays or rejections.

An EB-2 application usually involves various U.S. government fees, which may vary depending on the application process and updates from the authorities. Typically, there are no direct application fees for PERM/Labor Certification, but there are recruitment costs for the employer. The following fees are then applicable:

• I-140 application fee: USD 715
• USCIS Asylum Program Fee: USD 300
• Optional Premium Processing: USD 2,805
• Status adjustment via I-485: USD 1,140 plus USD 85 for biometrics
• Alternatively, the consular immigrant visa fee: USD 345
• After the visa is issued, the USCIS immigrant fee: USD 220