Overview: The second-preference, employment-based immigrant visa is available to the following two subcategories of foreign nationals: 1) members of the professions holding an advanced degree or its equivalent or 2) foreign nationals who possess exceptional abilities in the sciences, arts, or business.
Once an approved labor certification is obtained through PERM or a foreign national qualifies for the streamlined labor certification process under Schedule A II, a foreign national can then file for an immigrant visa with USCIS. (The PERM labor certification process is described in our other article PERM Labor Certification for Immigrant Work Visas and the Schedule A II process is described in Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability.)
Professionals holding an advanced degree or its equivalent
Eligibility criteria: To be eligible for this category, the foreign national must be working in certain fields deemed “professions” and must hold an advanced degree or its equivalent.
What types of jobs are considered “professions”?
The term “profession” includes, but is not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 8 CFR 101(a)(32). USCIS also considers professions to include any other occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
What is considered an advanced degree or its equivalent?
An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the foreign national must have a U.S. doctorate or a foreign equivalent degree.
Supporting documentation required: To establish the foreign national holds an advanced degree, he or she will need to submit an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree.
To establish degree equivalency, the foreign national must submit an official academic record showing that the foreign national has a United States baccalaureate degree or a foreign equivalent degree, and letters from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.
Foreign nationals with “exceptional ability” in the sciences, arts, or business
Eligibility criteria: To be eligible for this category the foreign national must possess an “exceptional ability” in the sciences, arts or business and be offered a job in his area of specialty.
What is considered “exceptional ability.”
The 8 CFR 204.5(k)(2) defines “exceptional ability” as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The USCIS “exceptional ability” standard is different from that of DOL; it is actually a slightly lower standard. Thus, if a foreign national meets the DOL standard for exceptional ability he or she should also be able to meet the USCIS standard.
Supporting documentation: To establish “exceptional ability” the foreign national must submit supporting documentation for at least three of the following:
(A) An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
If the above standards do not apply to the foreign national’s occupation, other comparable evidence of eligibility is also acceptable.
Application requirements: For either subcategory, the employer must file the labor certification (Form ETA 9089) and Form I-140 along with the requisite supporting documentation with USCIS. If the I-140 is approved, the foreign national can they apply for permanent residency (green card).
Employer requirement: The employer must establish it has the ability to pay the wage offered to the foreign national. Evidence of this ability can be in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer has 100 or more workers, USCIS may accept a statement from the company’s financial officer which establishes the ability to pay the proffered wage. In some cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted or requested by USCIS.
Quotas: There are worldwide and country-wide quotas. Whether a country is backlogged is shown on the monthly State Department visa bulletin. Visa availability and cut-off dates can change monthly, moving backwards or forwards. The countries that traditionally have been vulnerable to backlogs in the employment-based categories are China and India.
For more information about employment-based permanent residency or other visa options, please contact Attorney-Author Vandaveer at Vonda@vkvlaw.com or 202-340-1215.