The EB-2 visa

The EB-2 visa is a US immigrant visa for those with an advanced degree or exceptional ability, allowing long-term settlement in the United States.

What is the EB-2 visa?

The EB-2 visa is an employment-based visa category for non-US nationals holding an advanced degree (or the equivalent) or having exceptional ability. An EB-2 visa holder is treated as a lawful permanent resident of the United States.

Before applying for this visa category, the sponsor – usually the employer – needs to obtainlabour certification (PERM)from the Department of Labor throughform ETA-9089the Application for Permanent Employment Certification. However, this requirement may be bypassed by seeking a national interest waiver (EB-2 NIW).

In this guide, we provide an overview of the EB-2 visa application process.

Eligibility for the EB-2

To apply successfully for an EB-2 visa, the applicant must meet certain criteria. Before proceeding with the application, the applicant must have a sponsoring employer, and that employer needs to apply for and obtain PERM certification, unless a national interest waiver (NIW) has been granted.

For EB-2 visa purposes, a non-US national may fall within 1 of the following 3 groups:

• An advanced degree
• Exceptional ability
• A national interest waiver

Each of these groups has its own requirements, set out in the sections that follow.

An advanced degree

Where applying under the advanced degree category, the applicant must demonstrate:

• That they hold an advanced degree (or an equivalent foreign degree)
• Or that they hold a bachelor’s degree together with 5 years of “progressive” work experience

Where the PERM certification lists any further requirements, those requirements must also be met.

Exceptional ability

In this case, the applicant must demonstrate that they have expertise “significantly above that ordinarily encountered in the sciences, arts or business”. Similarly, the applicant must also meet any requirements set out in the original labour certification.

A national interest waiver

Where seeking a national interest waiver, the applicant may self-petition – no sponsor and no labour certification are required. To do so, they must demonstrate:

• That they hold an advanced degree or have exceptional ability (as defined above)
• That waiving labour certification would, on balance, benefit the United States
• That the proposed endeavour has “substantial merit and national importance”
• That the applicant “is well positioned” to advance the proposed endeavour

The EB-2 visa application process

Once the eligibility conditions are met, the worker – together with the employer – may apply for an EB-2 visa. This section divides the process into 4 basic steps:

1. Obtain PERM certification
2. File Form I-140
3. Attend the subsequent appointments
4. Prepare and file the green card application

Obtain PERM certification

Before filing with United States Citizenship and Immigration Services (USCIS), the US employer must prepare and file a PERM application with the Department of Labor. This process may take around a year (6 months for the preparatory steps and around 158 days for processing). Before filing form 9089, the employer needs to complete a number of mandatory preparatory steps, including:

• Meeting the basic requirements
  • For example, ensuring that the wage offered is equal to or greater than the “prevailing wage” for that occupation.
• Completing the recruitment steps before filing
  • This includes placing 2 job advertisements in 2 Sunday editions of a local newspaper and placing a job order with theState Workforce Agency (SWA).
• Giving prior notice to current employees

Only once the preparatory steps are complete may the employer complete and file the Application for Permanent Employment Certification.

Filing Form I-140 for the EB-2 visa

Within 180 days of receiving the certification, the employer needs to file Form I-140 with United States Citizenship and Immigration Services (USCIS). In reviewing Form I-140, United States Citizenship and Immigration Services (USCIS) staff determine:

• Whether the intended job position is the same as the position recorded in the original PERM certification
• Whether the non-US national applicant is qualified for that job

The sponsoring employer needs to prepare supporting documents to file with Form I-140. The documents must demonstrate:

• That labour certification has been obtained
• That the employer is able to pay the wage promised from the time Form I-140 is filed
• That, where the applicant is already in the United States, they entered lawfully
• That the applicant holds an advanced degree or has exceptional ability

The sponsor must also attach evidence showing that the applicant meets the eligibility criteria set out above. In completing Form I-140, the employer also needs to provide:

• The United States Citizenship and Immigration Services (USCIS) online account number(where one already exists)
• The North American Industry Classification System (NAICS) code
• The Standard Occupational Classification (SOC) code
• Contact details for the parties involved

The employer must pay the fee and complete every item on Form I-140. Failing to do so correctly makes refusal very likely. Once complete, the employer may send the application by post to United States Citizenship and Immigration Services (USCIS).

Attend the subsequent appointments

When United States Citizenship and Immigration Services (USCIS) receives the application, it sends a notice confirming receipt. The applicant may also receive a notice requiring them to attend forbiometricsor an interview (although this is not required in every case).

The interview notice sets out the date, time and location – or instructions to contact the embassy where the applicant is abroad – and a list of the documents to bring. EB-2 applicants need to be sure to bring all the necessary documents to the interview.

Once United States Citizenship and Immigration Services (USCIS) completes its review, it sends a notice of decision.

Prepare and file the green card application

Once Form I-140 is approved by United States Citizenship and Immigration Services (USCIS), the applicant may begin the green card process. Before completing any paperwork, the applicant needs to check whether green card numbers remain available in their category by consulting theVisa Bulletinor visiting the US Department of State website.

Once a visa is available, the applicant may begin completing the appropriate forms.

Adjustment of status

Where living in the United States, the applicant needs to fileForm I-485. The applicant should also apply for a re-entry permit where they wish to leave the country while awaiting the green card.

Form I-485 requires a number of documents, including:

• Form I-94
• A copy of the birth certificate
• The affidavit of support
• Arrest records (where applicable)
• The immigration medical examination results carried out by a designated doctor
• Evidence demonstrating sufficient financial means

After Form I-485 is filed and received, United States Citizenship and Immigration Services (USCIS) notifies the applicant of the biometrics appointment and the in-person interview (where required).

Consular processing

Where the applicant is currently outside the United States, they need to apply for a lawful permanent resident card through consular processing by filingform DS-260together with all the necessary civil documents such as:

• A birth certificate
• Court and prison records
• Military records
• Police certificates

The applicant also needs a medical examination and to attend an interview before a decision is made. Consular processing varies depending on where the application is filed, so specific guidance should be requested from the local embassy or consulate.

The list of documents to prepare for the EB-2

The employer needs to file several types of evidence with Form I-140 to demonstrate that the non-US national applicant holds an advanced degree or has exceptional ability.

An advanced degree

To demonstrate an advanced degree – or a bachelor’s degree together with 5 years of experience – the applicant must provide:

• An official transcript from the academic institution demonstrating the advanced degree (or the equivalent)
• Or an official academic transcript demonstrating a bachelor’s degree, together with letters from employers demonstrating 5 years of relevant work experience after graduating

Exceptional ability

To demonstrate ability “significantly above that ordinarily encountered in the arts, business or sciences”, the applicant must provide at least 3 of the following documents:

• An official transcript demonstrating a degree or certificate obtained in a relevant field
• Membership of a relevant professional association or club
• Formal recognition – from relevant organisations or peers – of the applicant’s contributions to the field
• Evidence of having been paid for services relating to their expertise
• A professional licence or certificate
• Letters demonstrating at least 10 years of full-time work in that field

A national interest waiver

Where seeking a national interest waiver, the applicant needs to submit evidence meeting the requirements listed in the “Eligibility” section. Specifically, the evidence must demonstrate:

• That the proposed endeavour has substantial merit and value to the United States
• That they are well positioned to advance the proposed endeavour
• That waiving the labour certification requirement is in the national interest

Acceptable evidence varies from case to case. The important thing is to gather documents demonstrating the national importance of the applicant’s skills and occupation.

How long does EB-2 visa processing take?

The waiting time forForm I-140currently averages 8.1 months according to historical data fromUnited States Citizenship and Immigration Services (USCIS). Wherepremium processingis chosen, Form I-140 can be completed in 15 days.

Once the I-140 is approved, the applicant must wait for a visa to become available. The waiting time varies by nationality.

Once a visa is available, the applicant may apply for a green card. Where the applicant is already in the United States, the average processing time for Form I-485 for employment visa applications is 7 months.

Wherethe applicant applies from abroad, the file is transferred toNational Visa Center (NVC). The National Visa Center transfers the application to the nearest embassy or consulate to arrange an interview. The waiting time at this stage depends on where the applicant lives.
The applicant may check the application status on theUnited States Citizenship and Immigration Services (USCIS) websiteor use the processing time estimator tool.

How much does the EB-2 visa cost?

For applicants within the United States

1. Form I-140(“Immigrant Petition for Alien Worker”):
   • Filing fee: USD 715 (paid by the employer)
   • Immigrant fee: USD 235
2. Form I-485(application to adjust status):
   • Filing fee: USD 1,440

For applicants outside the United States

1. Form I-140 (“Immigrant Petition for Alien Worker”):
   • Filing fee: USD 715 (paid by the sponsoring employer)
2. Form DS-260(green card application):
   • Filing fee: USD 345
3. Form I-864(“Affidavit of Support”):
   • Filing fee: USD 120

Frequently asked questions