Clarity and Strength in Immigration Law

Can I file in the EB-2 Category?

Many foreign nationals starting the employment-based permanent residence process are eager to have their case filed in the EB-2 category. The EB-2 category is for positions that require at least a master’s  degree, or a bachelor’s degree followed by five years of progressive work experience.  This may sound easy for the master’s degree holder, or even for experienced bachelor’s degree holders. However, if a foreign national forces her way into the EB-2 category without careful analysis and planning by her, her employer, and her immigration attorney, she could be in for a bumpy and disappointing ride. That is, even after her labor certification is approved, she could face a request for evidence, or even a denial at the I-140 stage.

Key Questions

1.       Does the position require a minimum of a master’s degree (or bachelor’s degree followed by at least five years of experience) for entry into the profession?

Just because the foreign national holds a master’s degree (or has a bachelor’s + 5 years of experience) does not mean that the person is eligible to file in the EB-2 category. Rather, the Department of Labor (the agency that processes the labor certification applications) will look at whether the particular position requires a master’s degree as a requirement. Many professions may have a range of requirements depending on the specific position, duties, and employer expectations. However, if your profession is one that traditionally does not require a master’s degree, the employer needs to be ready to defend why this particular position requires a master’s degree. Your immigration attorney can help you proactively address this point.

2.       When is a master’s not a master’s, and a bachelor’s not a bachelor’s? Make sure you have the right “kind” of degree!

At the I-140 stage, USCIS will determine whether you meet the requirements for the position. If the position requires a master’s degree, and if you have a US master’s degree, it is not likely that there will be a problem. If you hold a master’s degree, and the total number of years of education is not equivalent to the US education, you may receive an RFE, and it’s entirely possible the case would be denied. For example, in the US, the bachelor’s degree is four years and the master’s degree is two years, for a total of six years of post-secondary education. If you studied in India, and earned a three year bachelor’s degree and a two year master’s degree, USCIS may determine that your education is not equivalent to a US master’s degree since you do not have six years of post-secondary study. This is true even if you have a credentials evaluation stating that your education is equivalent to a US degree.

Likewise, if the position requires a bachelor’s degree followed by five years of experience:

  • The bachelor’s degree must be a single-source four year degree.
  • If you have a three year degree followed by a post-graduate diploma or some other type of education (other than a three year master’s degree), that is insufficient for purposes of filing for EB-2. You cannot combine degrees to make them equivalent to a bachelor’s degree for purposes of the EB-2 filing.
  • You must be able to document the five years of experience with letters of experience from previous employers. Generally speaking, experience gained while at the current employer (the employer sponsoring you for permanent residence) cannot be used. Also, the requirement is a full five years of experience. Four years and ten months (or even eleven months) is not sufficient.

3.       Can the employer prove ability to pay the EB-2 prevailing wage?

At the I-140 stage, USCIS will also analyze whether the employer has the ability to pay the prevailing wage. As you can imagine, the prevailing wage for EB-2 positions is generally higher than it would be for EB-3 positions (which only require a bachelor’s degree or two years of training or experience). Therefore, even if you meet the requirements listed in points 1 and 2 above, if the employer cannot prove ability to pay the EB-2 wage, your I-140 petition will not be successful, and it may be better to file in EB-3.

Conclusion

As you can see, there are many considerations in determining whether the EB-2 category is right for you. But with careful review and planning with your immigration attorney, and with realistic expectations, you will have a smoother and more pleasant journey to permanent residency.