EB-2 Visa

How to immigrate to the United States without needing a job offer

Louanni RibeiroVictor Braga The vast majority of applications for permanent residence in the United States, the famous Green Cards, are conditioned on the existence of a person or a company that offers employment to the permanent residence applicant. This means that professionals who intend to reside in the United States generally need a family or employment connection to meet the minimum criteria for application with the USCIS. Exceptions to this rule exist in two types of applications commonly referred to as “skill-based applications,” in which Green Card applicants must demonstrate extraordinary abilities or exceptional skills within their fields of expertise. This demonstration is carried out according to specific criteria established by U.S. immigration law and is subject to discretionary review by immigration officers. Application for Extraordinary Ability (EB1-A): For this type of application, the applicant must prove that they are among the top 10% of the most qualified and renowned professionals in their field. This means that EB1-A eligible individuals need to demonstrate that, in addition to consistent performance in their professional field, they are influential figures in the market, acting as trendsetters and driving advancements. EB1-A applicants must provide solid documentation to prove at least three out of the ten criteria established by U.S. immigration law, which include: If you would like to learn more about applying for permanent residence in the United States through the EB1-A category, click here. Application for National Interest Waiver (EB2 NIW): This type of application focuses on professionals with a high level of education or who have been working in their expertise area for a considerable amount of time (10 years or more). These professionals must also demonstrate that their presence in the United States would benefit the country by addressing a shortage in the American market or adding value to the U.S. For this type of petition, the applicant must prove that they either (i) hold a Master’s degree or higher (Ph.D. or postdoctoral), or (ii) satisfy three out of the six objective criteria stipulated by U.S. immigration law. Additionally, the applicant must fully meet the three subjective criteria established by the December 2016 DHANASAR case. If you would like to learn more about applying for permanent residence in the United States through the EB2 NIW category, click here. Given all that has been presented, it is evident that both Green Card categories are excellent solutions for professionals with well-established careers. Here at Drummond, we always affirm that there is an immigration solution for everyone, tailored to their unique circumstances. Therefore, even if the “skill-based applications” might not be the most suitable for your profile, we are confident that we can present you with various other immigration options. To learn more about the mentioned immigration categories or to explore the extensive range of immigration options, please don’t hesitate to get in touch with us. It would be our pleasure to assist you on this journey.

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Explaining Visa Retrogression and How it is Currently Affecting EB-2 National Interest Waiver (NIW) Processing

Employment-based visa processing is comprised of two general phases: (1) the merit-based phase where the petitioning employer (if applicable), foreign national, and proposed employment endeavor is analyzed for qualification based on the statutory criteria for applicable employment-based visa criteria; and (2) the consular processing (outside U.S.)/adjustment of status (inside U.S.) phase where beneficiaries apply for the immigration benefit, i.e. immigrant visa or permanent resident card (“Green Card”). The U.S. Congress has set limits on the number of immigrant visas (permanent visas) that can be issued each year within each available category. Although employers and foreign nationals are not precluded from initiating “Phase 1”, submission of a merit-based immigrant petition, immigrant visa quotas may affect their ability to proceed to “Phase 2”, which is what ultimately leads to a Green Card. Following approval of a merit-based immigrant petition, in order for a foreign national to receive a Green Card, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication.  The U.S. Department of State publishes a monthly Visa Bulletin which lists the cut-off dates that govern visa availability. Therefore, the monthly Visa Bulletin determines which applicants are eligible to file for consular processing (outside U.S.)/adjustment of status (inside U.S.), as well as which applicants are eligible for a grant of permanent resident status. An applicant’s ability to proceed to “Phase 2”, consular processing (outside U.S.)/adjustment of status (inside U.S.), is determined by their “priority date”, established based on the date of receipt of the merit-based immigrant petition. If an applicant’s priority date is earlier than the “cut-off date” published in the most current Visa Bulletin the applicant is eligible to apply for permanent residence. Currently, as of August 2023, the EB-2 category is facing “retrogression”, meaning there as more approved merit-based immigrant petitions at the moment then there are available immigrant visas. As such, the EB-2 “cut-off date” as published in the U.S. Department of State’s August 2023 monthly Visa Bulletin is April 01, 2022, for all countries except for China, India, Mexico, and the Philippines, which face longer waits. This means that foreign nationals with approved EB-2 petitions with priority dates prior to April 01, 2022, may proceed to “Phase 2”, consular processing (outside U.S.)/adjustment of status (inside U.S.), resulting in issuance of their much-awaited Green Card. Nonetheless, foreign nationals interested in EB-2 National Interest Waiver (NIW) petitions, particularly those well positioned to advance Critical and Emerging Technology Areas, are well advised to submit EB-2 National Interest Waiver (NIW) petitions to establish their priority date. Circumstances permitting, individuals outside the United States may pursue employment authorization in the United States through temporary employment-based visas while awaiting availability of an immigrant visa (permanent visa) based on their EB-2 priority date. If you believe you fit the description above and seek to immigrate to the United States to continue working in your field, please contact Drummond Advisors for case-specific inquiries. To learn more about the EB-2 NIW visa please click here. Written by Christopher Costa and Victor Braga

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Obtaining a Green Card for individuals with Exceptional Abilities (EB-2 NIW) and Multinational Managers/Executives will be much faster starting on January 30, 2023

With the goal of reducing the high volume of green card cases pending adjudication, the U.S. Citizenship and Immigration Services (an agency of the Department of Homeland Security responsible for analyzing and approving visa applications within the U.S.) published on January 12, 2023 the expansion of the Premium Processing Services to two categories that previously did not have access to it: Green Card application for Executives/Managers of Multinational Companies (EB-1 Multinational Manager/Executive) and Green Card petition for Professionals with Exceptional Ability through the National Interest Waiver (EB-2 NIW Exceptional Ability with National Interest). This regulation will become effective on January 30, 2023 and will apply to new applications filed as of that date, as well as to applications previously filed. The Premium Processing Service is a service made available by USCIS for some years now for certain visas that allows the case to be reviewed by a dedicated team with the aim of enabling accelerated processing. It works like a “Fast-pass at Disney”: the applicant pays an additional fee in the amount of US$ 2,500 and has his/her case reviewed in a much shorter period of time. Although the fee is expensive (approximately 3.5 times the regular fee for normal processing time), the average processing time for an EB-2 NIW (I-140 Petition) which is now about 16 to 19 months (depending on the reviewing center) will become 45 days. Thus, it is important to talk to your immigration lawyer to assess the cost-effectiveness of applying for Premium Processing, as in some cases it may not be the best strategy. If you need support for your case or want to apply for a green card or other visa, contact our attorneys. To learn more about the Green Card for Executives/Managers of Multinationals (EB-1 Multinational Manager/Executive) and the Green Card for Professionals with Exceptional Abilities through National Interest Waiver (EB-2 NIW Exceptional Ability with National Interest), among others visas, download our Visa Guide here. To access the official USCIS page with more information about this measure, click here (https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work) Written by Louanni Ribeiro, Associate at Drummond Advisors

Obtaining a Green Card for individuals with Exceptional Abilities (EB-2 NIW) and Multinational Managers/Executives will be much faster starting on January 30, 2023 Read More »

EB-2 NIW for individuals with exceptional skills – who qualifies and what will USCIS adjudicating officers understand as beneficial to the United States of America?

The EB-2 National Interest Waiver (NIW) petition has become very popular among experienced professionals who plan to move to the United States seeking  great job opportunities in the country, especially since 2016, under caselaw known as Matter of Dhanasar which redesigned the criteria for this visa application. However, although it has indeed clarified unclear portions regarding the criteria for a waiver for a case of National Interest, it did not make the process of evaluating EB-2 NIW applications easy and objective as some may think. The EB-2 NIW is a green card application for professionals with exceptional abilities in the fields of science, arts or business and/or professionals with advanced degree. To be considered a professional with exceptional abilities, the applicant must present evidence that positions him or her as a professional predominantly above average. Therefore, it is necessary to have sufficient experience in their field of activity to demonstrate that this professional stands out when compared to his/her peers in his/her job market. Compliance with at least 3 of the 7 standard requirements is mandatory. A professional with advanced degree is one with a master’s degree or doctorate in the USA (or foreign equivalent). It is important to recall that the EB-2 NIW is an exception to the EB-2 rule, allowing the waiver of the PERM process in cases where the foreign professional is of national interest that his or her knowledge would benefit not only an employer, but the US market in which he or she will operate. Note, therefore, the NIW – National Interest Waiver analysis performed by the immigration officer is discretionary, and (s)he  needs to be convinced that the presence of this foreign professional brings benefits to the U.S. that justifies the granting of the exemption from having an employer sponsoring the visa application. The rule for this visa seems simple and objective, but the process of adjudicating cases by U.S. immigration officials it is not so simple. The examination of the EB-2 NIW application requires two phases: A. Analysis of compliance with the criteria for framing as a professional with exceptional abilities and/or as a professional with advanced degree: the U.S. immigration officer will analyze the documentary evidence that proves that the professional has exceptional abilities in his/her field of activity and/or that this professional has an advanced academic level in his field of activity. This first part is relatively objective, and it is quite possible to offer a sufficient set of evidence to demonstrate the relevant experience of the professional. Concluding that there is compliance with the criterion exceptional abilities and/or advanced degree the U.S. immigration officer will pass the examination of the second part. B. Analysis of the convenience and relevance of waiving or not the professional from a work process before the U.S. Department of Labor (DOL): this second phase is quite subjective and is based on the caselaw known as Matter of Dhanasar, which divides this examination into 3 parts (“three prong test “): Substantial Merit and National Importance of the Proposed Enterprise: the analysis is made about what the petitioner intends to do in the USA and how the applicant intends to benefit the US market with his or her experience and exceptional abilities. The relevant issue is not the importance of the field of action, industry or caused by the petitioner will work. Instead, USCIS focuses on the specific effort the petitioner proposes to make. When determining whether the proposed endeavor is of national importance, the USCIS considers its potential forward-looking impact. The merit of the enterprise can be demonstrated in several areas, such as business, entrepreneurship, science, technology, culture, health or education. To meet the requirement of substantial merit, the petitioner must demonstrate that his proposed venture has broader implications beyond any company or organization. To meet the requirement of national importance, the petitioner must demonstrate the “potential prospective impact” of his work. For example, the petitioner can explain or demonstrate how their future work will affect the field of activity or that the specific work that the petitioner proposes to perform has broader implications in their field or for the U.S. economy. Providing evidence of various U.S. job offers in your area can help. In addition, provide support letters indicating that the petitioner’s work will contribute to the development of the U.S market that he will operate. Petitioner is well-positioned to advance with the proposed enterprise: the analysis focuses on the foreign professional (petitioner). To determine whether the petitioner is well positioned to advance the proposed endeavor, the USCIS considers factors that include, but are not limited to, education, skills, knowledge, and a history of petitioner success in related or similar efforts.  The petitioner must present evidence to document the achievements and corroborate projections related to the proposed business. In the preponderance of evidence, it would be beneficial for the United States to waive the requirements of a job offer and, therefore, the certification of work.  To perform this analysis, the USCIS can evaluate factors such as: If, considering the nature of the qualifications of the petitioner or proposed undertaking, it would be impractical for the petitioner to obtain a job offer or for the petitioner to obtain a work certification; If, even if other skilled American workers are available, the U.S. would still benefit from the petitioner’s contributions; If the national interest in the petitioner’s contributions is urgent to justify the waiver of the labor certification process. In each case, the factor(s) considered should jointly indicate that, in general, it would be beneficial for the U.S. to waive the requirements of a job offer and, therefore, a work certification. That said, it remains clear that the EB-2 NIW visa is an excellent opportunity for experienced and successful professionals who wish  to share their exceptional ability within the U.S. market, along with the desire to impact their industry by establishing an action and well defined strategic plan   through a personal plan or a business plan, without the need for a job offer or a labor

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