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Filing EB-2 Now Before Visa Caps Change

The Fairness for High-Skilled Immigrants Act overwhelmingly passed by the House of Representatives on November 29 has been blocked at the Senate by Sen. Chuck Grassley (R-Iowa), who has put a hold on the bill for reasons he has not so far clearly explained.

The bill seeks to alter per-country visa caps and shorten the waiting time for employment-based immigrant visas, particularly in the third-preference (EB-3) and second-preference (EB-2) categories for Indian and Chinese nationals,

But it does so at the expense of other countries such as the Philippines. In the event that the bill gets passed by the Senate and signed by Pres. Obama, it would result in longer waiting times for nationals of other countries.

One way to avoid the long wait is by immediately filing for the EB-2 category, where there is a yearly allocation of 40,000 visas.

Right now, for nationals of countries other than India and China, visa numbers are immediately available under the EB-2 category, while there is at least a six-year wait for those in the EB-3 category. If the bill becomes law, there would eventually be a visa backlog under EB-2 while that under EB-3 would worsen.

EB-2 has two subcategories: foreign nationals of “exceptional ability in the sciences, arts or business, and advanced degree professionals.

The advanced degree requirement is met if the beneficiary is a member of the professions holding an advanced degree or its equivalent, and the position requires at a minimum an advanced degree. Professionals that may apply for EB-2 include nurses, physical therapists, engineers, teachers and accountants.

The beneficiary must have a U.S. master’s degree or its foreign equivalent degree. If the beneficiary does not have a master’s degree, EB-2 is still appropriate if the beneficiary has a bachelor’s degree plus five years of “progressive experience” in the profession. In the latter case, the USCIS deems the combination as equivalent to a master’s degree.

For purposes of the equivalency, the employment experience must be one that “progresses, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

Exceptional ability workers, on the other hand, must show a degree of expertise that is “significantly above the ordinary”. This can be established through any three of the following: degree relating to an area of exceptional ability; employment letters showing at least 10 years of experience; having a professional license or certification; membership in a professional association; evidence that the alien commanded a high salary which demonstrates exceptional ability; and recognition of achievements and significant contribution to the industry or field by peers, government entities, and professional or business organizations.

A labor certification is required before applying for an EB-2 visa and this adds anywhere from several months to more than one year to the immigrant process.

Labor certification is not required, however, if the position is among those listed in Schedule A, such as nurses and physical therapists, as well as some exceptional ability aliens, including college and university teachers.

Another way to be exempt from the labor certification requirement is through the “national interest waiver”. The alien requesting the waiver must show that the employment is in an area of substantial intrinsic merit, the benefit of his employment is national in scope, and the national benefit outweighs the national interest in requiring labor certification.

Since the above-mentioned bill will likely become law, workers from countries other than India and China should consider all available options to try to avoid or mitigate the unfortunate effect of the law on them.

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