Reuben S. Seguritan

EB-2 Visa without a Master’s Degree

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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.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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