EB-2 Visa | U.S. Green Card for Individuals with Special Qualifications or Abilities
An EB-2 visa is a U.S. immigrant visa. It can be used to apply for a U.S. green card. The EB-2 visa is accessible in two sub-categories:
The first category comprises individuals engaged in a profession that typically necessitates a master's degree, or alternatively a bachelor's degree plus five years of work experience.
The second category encompasses individuals who possess exceptional ability in their field of work in the areas of science, business or the arts. Unlike the EB-1A visa, an EB-2 visa is not applicable to workers in the field of education and, with certain exceptions, in the field of sports.
Like other labor-oriented immigrant visas, the EB-2 visa is subject to a quota. However, the quota is seldom exhausted, so there are infrequent waiting times; if they occur, these are typically relatively short (e.g. one year).
If artists, scientists, business experts, or similar only wish to live and work in the USA for a limited period, it is advisable to apply for an O visa, as a green card has tax implications that should be considered.
What are the prerequisites for an EB-2 visa?
- For the first sub-category, the applicant must possess a degree that is superior to a U.S. bachelor's degree, e.g. a master's degree. However, the EB-2 visa can also be contemplated if the applicant has a U.S. bachelor’s degree (or equivalent foreign degree) and five years of relevant professional experience. Nevertheless, a lack of a bachelor's degree cannot be compensated for by work experience.
- The second sub-category necessitates the applicant to demonstrate that they have unique skills in their field, i.e., skills that are significantly above the average of those working in their professional field. Employees in the fields of education and - with certain exceptions - sports are not eligible for this subcategory. They would need to apply for an EB-1A visa.
- The application for an EB-2 visa will only stand a chance of success if the U.S. employer can prove that they could not find a preferred employee (U.S. citizen, person with legal permanent resident status) for the position they want to fill with the applicant.
- The U.S. employer must remunerate the applicant at least 100 percent of the wage that is typically paid for a comparable position in the local area where the job is situated. To determine this “customary wage”, the U.S. employer must submit a so-called Prevailing Wage Inquiry to the local U.S. labor agency.
Reduced requirements with national interest waiver
The EB-2 visa requires that the applicant can furnish proof of a job offer and that the U.S. employer can demonstrate that they have been unable to find preferential employees. However, there is one exception to these two prerequisites:
If it can be demonstrated that the applicant's presence in the USA is in the national interest, certain requirements may be waived, and a national interest waiver can be applied for. However, the conditions for this are stringent. Specifically, the term “national” must be interpreted literally: It is not sufficient to demonstrate that the applicant will bring local benefits to the economy or education system. The applicant's activities in the USA must have a national impact. A mere “shortage of skilled labor” does not qualify professionals to apply for a national interest waiver solely for that reason.
Procedure to apply for an EB-2 visa for the USA
The application for an EB-2 visa can be initiated once all prerequisites are fulfilled. It is recommended, however, to seek legal counsel prior to applying. It is crucial to verify the equivalence of any foreign degree with a U.S. bachelor's or master's degree. Several U.S. organizations provide such equivalence checks.
The application process for an EB-2 green card involves three steps:
Step 1: Job advertisement by the U.S. employer
Before the petition is filed, the U.S. employer must undertake the following steps:
- The U.S. employer submits a Prevailing Wage enquiry to the relevant employment agency.
- The U.S. employer advertises the position, typically in two newspapers and through the local U.S. employment agency. Certain deadlines and formal requirements must be adhered to. The process can also vary depending on the specific sub-category of the EB-2 visa being applied for. If candidates apply for the advertised position, the U.S. employer must conduct interviews and, if necessary, justify why the applicants were not suitable.
- If the position remains unfilled, the U.S. employer typically submits a Labor Certification Application to the U.S. Department of Labor.
Step 2: Filing of the petition by the U.S. employer
The U.S. employer submits the I-140 petition to the U.S. immigration authorities. Deadlines arising from the approval of the Labor Certification Application must be respected.
Step 3: U.S. green card application by the employee
Once the petition is approved, the employee can apply for a U.S. green card. There are two options for this:
- If the employee is already legally in the USA, they can apply for an adjustment of status locally to transition their status from “non-immigrant” to “immigrant”.
- If an adjustment of status is not possible or desired, an immigrant visa can be applied for at a U.S. consulate outside the USA (application fee: USD 345, as of August 2022). After paying an immigrant fee of USD 220 (as of August 2022) and entering the USA timely with the immigrant visa, the green card is automatically mailed to the applicant at a U.S. address provided during the visa process.
EB-2 visa and family members
Spouses and children under the age of 21 of an EB-2 applicant can also obtain a green card.
Job loss and EB-2 green card
Unlike non-immigrant visas, the green card's validity is not employment-dependent. For instance, if an individual working in the USA on an L visa resigns or gets terminated, they must invariably exit the USA. The scenario differs with a green card: while an employer must finalize the process with the applicant to secure a job-based green card, once the green card is acquired, it is not contingent on a specified employment duration or the like.
Our advice on the EB-2 green card
Would you like to live and work in the USA and would you like qualified advice from an experienced attorney on choosing the right visa category and support with your visa application process? We will be happy to help you! The best way to contact us is by e-mail (info@visum-usa.com) or by phone (+49 69 76 75 77 85 26).
We offer an initial consultation with our U.S. visa experts from EUR 500 plus VAT.
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