EB-2 / National Interest Waiver (NIW) / Schedule A/Group II
Permanent immigration to the United States is divided into three major categories: employment-based, family-sponsored, and special programs. Employment-based immigration is divided into various categories and subcategories, distinguished principally by the level of skill and accomplishment possessed by the intending immigrant. Family-sponsored immigration is divided into several categories based on the immigrant status of the sponsor (permanent resident or citizen) and the nature of the family relationship. The employment-based and family-sponsored subcategories are known as "preferences." Special programs include asylum, the Diversity Lottery, NACARA, and the Cuban Adjustment Act. A complicated allocation system based upon category and country of origin determines how many employment-based and family-based immigrant visas are available on an annual basis. Visa availability is monitored by the U.S. Department of State ("USDOS") and published monthly in the Visa Bulletin.
Individuals may be "sponsored" for permanent residence by employers based on an offer of permanent, full-time employment. In some instances involving individuals of extraordinary ability and international recognition, it is possible to self-petition for permanent residence.
Three Steps to a Green Card
Step 1: Most persons who obtain permanent resident status based upon employment must first obtain a certification from the Secretary of Labor that their employer has tested the labor market and has been unable to find qualified U.S. workers. This process, which is known as labor certification, usually involves the placement of two newspaper advertisements as well as posting of the job's availability both at the job site and with the local unemployment office; and in the case of jobs which require a Ph.D. or M.D., evidence of recruitment in professional journals or newspapers with a national circulation such as The New York Times or The Wall Street Journal. Thereafter, the employer must submit a post-recruitment report to the Department of Labor ("DOL") identifying applicants and the lawful, objective, job-related reasons for their rejection. It currently takes approximately nine to 14 months to obtain labor certification from the DOL in many jurisdictions. However, in some areas, such as California, New York, and New Jersey, it can take three years for a labor certification application to be decided. Once labor certification has been granted, an immigrant visa petition is filed with the U.S. Citizenship and Immigration Services ("USCIS"). Immigrant visa petitions usually are adjudicated within 180 days in most jurisdictions but can take over 12 months in others. Thereafter, the applicant can file for permanent resident status in the United States or at a Consulate abroad.
Step 2: Following certification by the DOL, the green card process continues with: (a) an immigrant visa petition (filed by the employer) and (b) either an application for adjustment of status (filed by the foreign national) or immigrant visa processing by the foreign national at a U.S. Consulate abroad. The immigrant visa petition is filed with the U.S. Citizenship and Immigration Services ("USCIS") and its purpose is to qualify the foreign national as eligible to apply for permanent residence in one of the employment-based immigration categories based upon the foreign national's credentials and the job offer.
Step 3: The adjustment of status application is the foreign national's application for clearance as a permanent resident, filed within the United States. Under current law, the foreign national may file the application concurrently with the employer's immigrant visa petition. While an adjustment application is pending, the foreign national and any dependents are entitled to apply for an Employment Authorization Document ("EAD"). The foreign national may also apply for a travel document called "Advance Parole," which allows the foreign national and any dependents to enter the United States without a valid visa while the adjustment application is pending. Upon approval of the adjustment application, the principal foreign national and any accompanying dependents will be processed for the creation of their actual "green cards," which will be sent to them by mail. The alternative to adjustment of status is for a foreign national to apply for permanent residence at a U.S. Consulate overseas based upon an approved I-140 petition. This is known as "Consular Processing."
EB-2 Individuals with Advanced Degrees or Possessing Exceptional Ability
This category is reserved for individuals with advanced degrees (or the equivalent) or individuals of exceptional ability in the sciences, the arts, or business. Labor certification is required for this category, except for individuals whose cases fall under a very narrow exception that waives labor certification in the national interest, a so-called "national interest waiver." The determination of the appropriate preference category is not a matter of choice. Rather, a case will qualify for one or the other preference category based upon an objective application of the law to the facts of the particular matter. It is important to remember that if a position itself does not require an advanced degree, then the case will not fall into the second preference category, even if the foreign national possesses an advanced degree.
Advanced Degree or the Equivalent
An advanced degree is a post-baccalaureate degree, e.g., a master’s degree or a doctorate (or foreign equivalent). The equivalent to a master's degree, for purposes of this category, is a four-year bachelor's degree followed by five years of progressive experience demonstrated by advancing levels of responsibility and knowledge in the specialty.
"A degree of expertise significantly above that ordinarily encountered." Evidence of exceptional ability can include an advanced degree in the area of specialization, at least 10 years of experience, a license to practice the profession, and industry or peer recognition for achievements or contributions to the field. Exceptional ability cases require a job offer and labor certification.
You must meet three out of the 10 listed criteria below to prove exceptional ability in your field:
Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
Letters documenting at least 10 years of full-time experience in your occupation
A license to practice your profession or certification for your profession or occupation
Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
Membership in a professional association(s)
Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Other comparable evidence of eligibility is also acceptable
Some persons can receive permanent resident status based upon employment without first obtaining labor certification from the DOL. Those persons file an immigrant visa petition immediately with the USCIS. This saves substantial time and expense for the employer and the employee. Moreover, under limited circumstances, it is possible to obtain permanent resident status without either labor certification or an offer of employment.
This avenue to permanent resident status without a job offer or labor certification is available to persons with an advanced degree, or of exceptional ability in the sciences, arts, or business. To succeed, there must be extensive and strong evidence that the applicant will be engaged in work which is in the "national interest" of the United States. An immigrant visa petition and a request for a waiver of the labor certification requirement under this immigrant visa category must include at least three of the following:
Evidence that the applicant has an advanced degree from a college, university, school or other institution of learning relating to the area of exceptional ability.
Evidence in the form of letters from current or former employers showing that the applicant has at least ten years of full-time experience in the field for which he or she is being sought.
A license to practice the profession or certification for the profession.
Evidence that the applicant has commanded a salary or other remuneration for services which demonstrate exceptional ability.
Evidence of membership in professional associations.
Evidence of recognition for achievements and significant contributions to industry or the applicant's field by peers, governmental entities or professional or business organizations.
Previously, the national interest immigrant visa category enabled people working in the arts and sciences to obtain permanent resident status with relative ease and without labor certification or a job offer. However, an administrative decision, New York State Department of Transportation, made it much more difficult to obtain permanent resident status without labor certification based upon a national interest argument. This decision impacts most severely upon people early in their career because it often is difficult to satisfy the requirement of demonstrating the foreign worker has already contributed to his or her field to such an extent that his or her work is in the national interest. Furthermore, it must be shown that the foreign worker's employment would be of greater benefit to the national interest than testing the labor market for U.S. workers. Specifically, to obtain a national interest waiver of the labor certification requirement it must be shown "that the national interest would be adversely affected if a labor certification were required for the alien." Finally, this administrative decision makes it very difficult for physicians to obtain a waiver of the job offer and labor certification requirements merely because they are working in a Health Professional Shortage Area (HPSA) or at a Veterans Administration (VA) hospital.
Schedule A/Group II
In the aftermath of the New York State Department of Transportation case, Schedule A/Group II has been resurrected as a possible alternative option to obtain permanent resident status without labor certification. Significantly, the new requirements under New York State Department of Transportation do not apply to the Schedule A/Group II category as a labor certification is "pre-certified" by the Department of Labor. Thus, like a national interest case, an immigrant visa petition and supporting documentation are submitted directly to the USCIS. Although immigrant status based upon Schedule A/Group II does not require labor certification, it does require a specific offer of employment. In fact,
the immigrant visa petition must be filed by an existing or prospective employer on behalf of the foreign beneficiary.
Threshold eligibility for a Schedule A/Group II exemption from labor certification requires a showing that the foreign beneficiary has been practicing "their science or art for the last year," and that his or her past and continued work in the United States requires "exceptional ability." For the purposes of this provision, the term "science or art" means any field of knowledge and/or skill which colleges and universities commonly offer specialized courses leading to a degree. To qualify, however, the foreign beneficiary need not have studied at a college or university. Performing artists cannot qualify for Schedule A/Group II.
To qualify for permanent resident status without labor certification under Schedule A/Group II, there also must be evidence that the foreign beneficiary enjoys "widespread acclaim and international recognition" according to "recognized experts" in his or her field. Case law interpreting the Schedule A/Group II prior to the 1990 Act instructs that the foreign beneficiary "should be so far above the average members of his field that he or she will clearly be an asset to the United States."
In addition to evidence that the foreign beneficiary practiced in his or her field for the previous year and will practice in the same field, in a position that requires "exceptional ability," the regulations require the petitioning employer to complete additional forms not required in national interest waiver cases, including labor certification forms, even though labor certification is not required. The employer must also submit evidence that the alien beneficiary satisfies at least two of the following criteria:
Documentation of receipt of internationally recognized prizes or awards for excellence in the field.
Documentation of membership in international associations in the field which require outstanding achievement of their members, as judged by recognized international experts in their fields.
Published material in professional publications about the beneficiary, relating to his or her work in the field, which shall include the title, date, and author of such published material.
Evidence of participation on a panel, or individually, as a judge of the work of others in the same or in an allied field.
Evidence of original scientific or scholarly research contributions of major significance.
Evidence of authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation.
Evidence of the display of the beneficiary's work at artistic exhibitions in more than one country.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.