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EB-2 Professionals with Advanced Degrees or Exceptional Ability

EB-2 refers to the second preference workers who are members of professions who hold advanced degrees or who have exceptional ability in the sciences, arts or business that will benefit the national economy, cultural or educational interests of the United States.

 

Who fall under this second preference category of workers?

This category is open to professionals who hold advanced degrees or who have exceptional ability in the fields of science, arts or business. They must prove not only that their work will benefit the US national economy, cultural or educational interests and welfare, but they must also prove that their services in the fields of science, art, profession or business are sought by a US employer.

However, the Attorney General may, in the national interest, waive the requirement that the alien worker’s services in the sciences, arts, professions, or business be sought by an employer in the US. This means that the requirement for there to be an offer of employment can be waived. One example is for a physician or doctor who agrees to work full time in an area designated by the Department of Health as having a shortage of health care professionals.

 

Who will file the petition?

It is the US employer who will file the Petition for Alien Worker and the application for Labor Certification. The US employer will file the application and the petition on behalf of the primary beneficiary, the alien worker.

 

Who may be considered a derivative beneficiary of the Petition for Alien Worker?

The derivative beneficiary of a Petition for Alien Worker may be the parents of the primary beneficiary (the alien worker) or the spouse or unmarried children under the age of 21. They are derivative beneficiaries because the petition was not filed on their behalf and yet, they can be included in the petition. They can join or accompany the principal beneficiary to the US.

 

What if the employee is already in the United States having been lawfully admitted under a different visa, can a US employer still file a Petition for Alien Worker?

It depends. The nonimmigrant visa under which the employee entered the US should not be one that bars the employee from applying for the status of permanent residency. Some nonimmigrant visas require proof that the applicant has no intent to migrate to the US. Thus, a subsequent petition for immigration would contradict the intent of the prior visa. The employee must not have worked without proper work authorization or violated their status as a nonimmigrant visa holder.

 

What other requirements are there for an employee already in the US under a different visa to change his or her status, and apply for an immigrant visa through employment?

  • The US employer must still file an immigrant visa petition (Form I-140) on behalf of the employee.
  • But at the same time, the employee may file an application for Change of Status (Form I-485).
  • The employee must prove that he or she was lawfully admitted into the United States
  • And that the employee does not suffer from any ground for inadmissibility.
  • There must be an immigrant visa available for the immigrant category that the US employee seeks.

 

What if the employee in the US does not satisfy any of these requirements?

The employee will not be able to stay in the US and apply to adjust their status from a nonimmigrant visa holder to that of an immigrant visa holder. The employee must return to his or her native country or country of residence and apply for an immigrant visa at the nearest US Embassy or Consular Office there. The US employer may file on his or her behalf an application for Labor Certification and a Petition for Alien Worker.

 

What happens when the US employer’s Petition for Alien Worker is approved?

The approved petition will be sent to the National Visa Center. The employee will be notified that the petition filed on his behalf has been approved and the employee’s visa will be issued as soon as an immigration visa is available. The employee will also be notified of the schedule for the immigrant interview and of the medical examination that the immigrant must accomplish.

 

What happens during the immigrant interview?

At the immigrant interview, the consular officer will determine if the information provided by the US employer in the petition is accurate and correct by cross-referencing it with the information that the consular officer will ask from the immigrant. The consular officer will fact-check everything against the documents which the immigrant will present at his interview. Most of all, the consular officer will try to determine if there are grounds for inadmissibility that applies to the immigrant. If there are none and the consular officer is satisfied that no immigration fraud has been committed, the consular officer will issue the immigrant visa.

 

How can an applicant prove advanced degrees?

To prove an advanced degree, the employee must provide:

  • all transcript of academic records,
  • curriculum vitae,
  • resume
  • diplomas and certificates obtained.

 

How can “exceptional ability” be proved?

While the academic records of the primary beneficiary prove his or her possession of advanced degrees, these in themselves do not prove exceptional ability. “Exceptional ability” means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

  • The primary beneficiary may submit letters from past and current employers to show experience in the occupation.
  • If the primary beneficiary has a license to practice a profession, the license can be presented.
  • Membership in a professional association may be shown.
  • If the primary beneficiary has received recognition for achievements and significant contributions from peers or from organizations, these all go to prove exceptional ability in a field.
  • All evidence submitted will be reviewed in its totality.

 

Do you need to consult with an immigration lawyer to see if you fall under the second preference category for immigrants through employment?  Do you need assistance in providing documents to support the petition for alien worker?  Do you need help in preparing for an immigrant interview?  Call any of our experienced immigration lawyers at Lluis Law – they are ready to assist you.

 

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