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EB-2 Visa without a Master’s Degree

Professionals can qualify under the employment-based second preference (EB-2) category if they have a master’s degree or higher and if the position requires an advanced degree. This category is appropriate for workers in highly skilled occupations, such as physical therapists, doctors, lawyers, engineers and pharmacists.

An EB-2 classification is desirable primarily because there are no visa backlogs under this category, except for nationals of India and China. In contrast, under the third preference (EB-3) category under which most professionals and skilled workers fall, there are significant waiting times ranging from at least six years to over ten years.

The requirement to obtain labor certification from the Department of Labor (DOL) may also be waived if the EB-2 worker can show that the waiver is in the national interest of the United States. The exemption from labor certification through the national interest waiver (NIW) can further speed up the green card process by about a year.

Even without an advanced degree, however, a professional can qualify under EB-2 if the position offered requires a master’s degree or higher but the employer will accept a bachelor’s degree plus five years of progressively responsible experience, and if the professional possesses the requisite education and experience.

The employer, however, may not simply require a master’s degree or bachelor’s degree with 5 years experience just to make a position qualify under EB-2. For instance, it cannot require a master’s degree in business administration for an accountant position unless the higher educational requirement is related and necessary to the position.

The job requirements should not be greater than those assigned by the DOL in its Standard Occupational Classification system. Otherwise, the employer must explain that the higher requirements are justified by a “business necessity”.

Progressive experience is not defined in the statute or regulations but it entails an increase in the employee’s level of responsibility over time. Good indications of progressive experience include the addition of more complex job duties, payment of higher wages and promotion to different job titles.

The five years of experience generally means full-time work experience. There is no definite standard for full-time employment under the EB-2 category but it is believed that a 35-hour workweek meets the minimum standard for full-time employment.

The experience must also have been gained after graduation from the bachelor’s program. Any experience before the bachelor’s degree will not be counted towards the required five years.

Moreover, the experience and the educational degree must have come before the filing of the labor certification application. If a NIW is sought by the beneficiary, he must fulfill the requirements by the time that the I-140 petition is filed.

For positions that do require an advanced degree, the EB-2 category is an attractive alternative for professionals who have the necessary skills for the job but perhaps chose to forego graduate education to instead gain work experience.

Furthermore, given the rather nebulous progressive experience requirement, it is very important that the professional adequately document his experience and qualifications to help ensure that he meets the standard.

Immigration Bill to Alleviate Doctor Shortage

Reports show that there is a serious shortage of doctors in America today. While it may not be obvious in big cities, the lack of physicians has become strongly felt in poor and rural areas. By year 2020, the doctor shortage is expected to reach 200,000 because of the aging baby boom generation.

A bipartisan bill was recently introduced in the Senate to make it easier for foreign doctors to obtain temporary visas and permanent residence in the U.S. and thereby address the shortage.

The bill, also known as the “Conrad State 30 Improvement Act” (S.1979), seeks to make permanent a program allowing states to recommend J-1 waivers for physicians who work in medically underserved communities. Currently, the program needs to be renewed every 2 or 3 years. The number of doctors that can be sponsored by each state annually would also be increased from the current 30.

It would also allow doctors on H-1B status to restart the 6-year maximum period if they agree to work in underserved areas. The doctors would also find it easier to change employers.

Additionally, doctors who work in underserved areas would be able to immigrate under the EB-1 category, instead of the EB-2 category. This would greatly benefit physicians from China and India who would otherwise face lengthy visa backlogs under EB-2.

The doctor deficit is in part due to the economic recession but also in some part a result of the immigration restrictions on foreign medical graduates.

The immigration of foreign doctors is a complex matter governed by different sets of rules. Foreign doctors usually come to the U.S. either on an H-1B visa, which allows temporary employment, or J-1 visa, which permits them to undergo graduate medical education or training.

Most of the time, hospitals and medical schools offer only the J-1 option because of the lower level of responsibility required of them. Because H-1B visas are subject to annual limits, when the cap is reached the J-1 is sometimes the only option.

Upon the expiration of their J-1 visa, doctors must return to their home country for two years before they can apply for permanent residence. They may apply for a J-1 visa waiver to be exempt from this home residence requirement. One of the ways to get a waiver is through the state or the Conrad State 30 program, which is named after Sen. Kent Conrad (D-North Dakota) who sponsored the bill back in 1994 and which is the subject of the S.1979.

Many doctors, however, are unwilling to go through the waiver process and instead choose to go back to their home countries or elsewhere to work. Even doctors on H-1B status who lack options for permanent residence sometimes just give up upon reaching the 6-year maximum H-1B period.

Although the specific requirements vary by state, the Conrad State 30 program allowed states to sponsor a certain number of foreign-born, U.S.-trained physicians per year for the J waiver, as long as they agreed to practice in underserved communities for at least 3 years. It was seen as a win-win situation: the doctor was able to remain in the U.S. and the community had a doctor.

The program has allowed 9,000 doctors to work in rural and underserved communities. However, the number of foreign doctors participating in the program has gone down over the years, further limiting the access to healthcare of the people who perhaps need it the most.

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.

Entrepreneurs Now Have Faster Route to Green Card

The USCIS recently modified its policies to allow immigrant entrepreneurs to obtain a green card faster under the employment-based second preference (EB-2) category. This is one of several measures taken by the USCIS intended to help ensure that the United States “out-innovate and out-compete” the world in today’s global economy.

The USCIS clarified that an entrepreneur may qualify under EB-2 if he/she fulfills existing requirements as an advanced degree professional or individual of exceptional ability, and meets the requirements which include a job offer and a labor certification from the Department of Labor.

An entrepreneur may qualify for EB-2 classification if he/she is a member of a profession holding an advanced degree or its foreign equivalent, and the underlying position requires, at a minimum, a member of a profession holding an advanced degree or its equivalent

Another way that an entrepreneur may qualify is if he/she is an individual of exceptional ability in the sciences, arts or business. It must be demonstrated that the entrepreneur will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. To establish exceptional ability, at least 3 of 6 criteria must be met, which include academic proof, employment letters showing at least 10 years of full-time experience in the occupation, a license or certification, and evidence of salary or remuneration that demonstrates exceptional ability.

In either case, there must be a U.S. employer filing the petition on the entrepreneur’s behalf and which has received a labor certification. The entrepreneur must also meet all the specific job requirements listed on the labor certification.

The job offer and labor certification requirements may be waived if it’s in the national interest to do so. Entrepreneurs may now obtain a National Interest Waiver (NIW) under EB-2 if they can demonstrate that their business endeavors will be in the interest of the United States. With a NIW, the entrepreneur may be able to file a petition for him/herself.

“National interest” for purposes of the waiver is not defined by statute or regulation. However, the threshold for eligibility for the waiver is determined by three criteria. First, the NIW applicant must seek employment in an area that has substantial intrinsic merit. The focus is on the area of activity and not the entrepreneur’s qualifications.

Second, the waiver applicant must demonstrate that the proposed benefit will be national in scope. For example, according to the USCIS, the entrepreneur can demonstrate that his/her enterprise will also create or spin off jobs in other parts of the country, or that the jobs created locally will have a positive national impact.

Third, the waiver applicant must demonstrate that the national interest would be adversely affected if the position sought by the applicant were made available to U.S. workers. In other words, the applicant must show a national benefit so great that it outweighs the national interest in protecting U.S. workers through the labor certification process. The entrepreneur may fulfill this by demonstrating that his/her business enterprise will create new jobs for U.S. workers.

Except for nationals of China and India, there is currently no visa backlog under the EB-2 preference category. With the substantial backlog in the EB-3 category, qualifying under the EB-2 category assures a considerably shorter waiting time for permanent resident status.

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