To qualify EB-2,
- On the date that the labor certification application was filed (a/k/a your priority date) you must:
- Hold an advanced degree (i.e., a master’s or higher degree), OR
- Hold a bachelor’s degree plus five years of progressive, post-degree work experience, OR
- Have exceptional ability in the sciences, arts or business
- The underlying position must require, at a minimum, an advanced degree or the equivalent.
A foreign degree is sufficient if through evaluation it can be demonstrated that it is equivalent to a U.S. degree.
Exceptional ability means a degree of expertise significantly above that ordinarily encountered. To meet the standards,
First, you must demonstrate any three of:
- A degree, diploma, certificate or similar award from an institution of learning relating to the area of exceptional ability
- Letter from current or former employer showing at least ten years of experience
- A license or certification to practice profession
- Person has commanded a salary or remuneration demonstrating exceptional ability
- Membership in a professional association
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization
- Comparable evidence may be submitted if above categories are inapplicable. This evidence may include expert opinion letters.
Second, you must prove that based upon all of the evidence you are at a degree of expertise significantly above that ordinarily encountered (Final Merits Determination).
Qualified Job: Advanced Degree Position:
To establish your eligibility for EB-2 classification, you must also demonstrate that: the sponsoring company, and the industry as a whole, requires an advanced degree or the equivalent for the proffered position.
Also, the offered annual salary must equal to or exceed the prevailing wage which the Department of Labor determines.
Common Issues in Employment-based Immigration Categories:
- Overview of the Process
Phase 1. Labor Department Step
- Prevailing Wage Request to the U.S. Department of Labor
- Recruitment activities (to give U.S. workers an opportunity to apply for the targeted position)
- Submitting a Permanent Labor Certification application to the U.S. Department of Labor
Phase 2. I-140 Immigrant Petition Step
Phase 3. I-485 Green Card Application or Immigrant Visa Application Step
- Prevailing Wage
The immigration law requires that the hiring of a foreign worker should not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the legal requirement, the Department of Labor’s regulations require that the wage offered to a foreign worker must be the prevailing wage rate for the occupation classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the particular geographic area of intended employment. The National Prevailing Wage Center determines the prevailing wage rate based upon several factors, including: location of employment place, job requirements, the advanced level of job duties, as well as number of subordinate workers to supervise.
- Employer’s Financial Ability to Pay:
The sponsoring employer is required to prove that it has sufficient financial ability to pay the annual salary that it offers to you, by any one of the following three ways:
- Its annual NET income equals to or exceeds the offered annual salary, OR
- Its NET CURRENT assets equal to or exceed the offered annual salary, OR
- It has been paying you the offered annual salary.
This financial ability must be maintained from the date of submitting the labor certification application through the date of final approval of your Green Card application, with no interruption.
To show its financial ability, the sponsoring company must submit any one of: its FEDERAL corporation income tax return, annual report or audited financial statement. The only exception to this rule is that if the number of employees of the sponsoring company is over 100, then a letter from its chief financial officer can replace the above financial documents.
- Your Green Card Application:
If the visa number for EB-2 is available when the labor certification application is approved by the Department of Labor, then you are eligible to submit your application for permanent residency. If you are lawfully staying in the United States at the moment, then you may adjust your status to a permanent resident by filing Form I-485 to the USCIS. If you are not or if you choose to take the consular process, then you may apply for an immigrant visa to a U.S. Consulate abroad after waiting the approval of I-140 immigrant petition that the sponsoring employer files with the USCIS.
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