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EB-2 Eligibility: A Simple Two-Prong Test

July 24, 2011

Given the severe backlog in EB-3 immigrant visa numbers, especially for applicants from India, more individuals are considering the EB-2 route.  Our office receives the EB-2 inquiries almost everyday.  Not all cases qualify for EB-2.  When we review a case and inform the employer and the employee that a given case is not EB-2 eligible, what we get a typical response “I have x years of experience, why are you saying that I am not qualified?”.  A simple two-prong test would help understand the eligibility criteria.

Step 1: The minimum requirements for the position in question at the employer require a) an individual holding an advanced degree or its foreign equivalent in the specialty; or b) an individual holding a Bachelor’s degree or foreign equivalent and at least five (5) years of progressive (increasing in job responsibilities) post-Bachelor’s experience in the specialty.

Step 2: The foreign national being sought to fill the position in Step 1 must in fact meet the minimum requirements stipulated by the employer.

For instance, even if an individual holds a Doctorate degree in Computer Science from a top engineering school and has 10 years experience working for Fortune 100 Companies in key positions making $250,000/year, he or she might still not qualify for EB-2 if only the position he or she tries to fill requires someone with a Bachelor’s degree only.

Besides the above, there are other critical issues including, but not limited to, whether the individual has a combination of two degrees which might not equate to U.S. Master’s equivalent; employer’s ability to pay the wages for the position; minimum requirements for the position as stipulated by Department of Labor; minimum requirements stipulated by the employer for other same or similar positions currently and in the past within the organization; and whether the job requirements are tailored to qualify the foreign national only.

A careful, thorough review by an immigration attorney determines not just whether a person has a Masters or Bachelor’s + 5 yrs experience, but a holistic view of the entire case presently and an ability to foresee any potential issues in the future.  A well strategized case is not only good for the employer and the employee but is also appreciated by the two agencies dealing with the process, namely Dept. of Labor and U.S. Citizenship and Immigration Services.

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