Immigration Law Associates
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EB-2 Pre-Certified

 

Introduction
The EB-2 Pre-Certified category is a lesser known and somewhat underutilized option for permanent residence based on employer sponsorship. For those who qualify, it offers a speedier path than the standard PERM process involving DOL labor certification. It may be a good option for outstanding scientists who are still in the early years of their careers and unable to qualify for an EB-1A or EB-1B visa or an EB-2 National Interest Waiver.

This option, referred to in the law as “Schedule A Group II” is a special exception within the EB-2 rules allowing a sponsoring employer to “pre-certify” the position and skip the lengthy DOL labor certification process. As a result, the employer can immediately file an I-140 immigrant petition for the alien scientist. Because labor certification is usually the most difficult and time consuming part of an employer-sponsored permanent residence application, this option substantially reduces processing time.

Eligibility Criteria
The Schedule A Group II option may be available to scientists in a number of fields, including architecture and engineering occupations; computer-related occupations; medical or health-related occupations; math or physical science occupations; and life science occupations, including agriculture, biology or psychology. (This option is also available to foreign nationals with careers in a number of artistic fields, including the performing arts).

EB-2 Pre-Certified Standards
Pre-certification under Schedule A Group II requires an employer to supply documentary evidence testifying to the widespread acclaim and international recognition accorded to the alien scientist by recognized experts in their field. In addition, the employer must provide documentation showing that:

The employer’s petition on behalf of the foreign beneficiary must contain convincing documentation from at least two of the following seven groups of evidence to prove exceptional ability:

  1. Receipt of international recognized prizes or awards,
  2. Membership in international organizations that require outstanding achievement for membership,
  3. Published material about the applicant in professional publications,
  4. Participations as a judge of the work of others in the field,
  5. Original scientific or scholarly contributions of significance,
  6. Authorship of published scientific or scholarly articles in professional journals, and
  7. Display of work at exhibitions in two or more countries.

Advantages
EB-2 Pre-Certified allows for quicker processing than a standard EB-2 application, and it is open to those whose work cannot be construed as “in the national interest”. Since it does not require a DOL labor certification, it may also be a less risky option for those who qualify. It is generally easier to meet the exceptional ability standard of Schedule A Group II than the higher standards for EB-1A and EB-1B.

Application Procedure
No prevailing wage determination is required for applications in this category because the occupations in Schedule A Group II are deemed as “shortage areas” where no qualified U.S. employees are available. In order to obtain pre-certification, employers still must post the position internally for a minimum of 10 consecutive days. A completed but uncertified labor certification form is then submitted to USCIS along with the applicant’s I-140 immigrant petition.

The employee may concurrently submit his or her I-485 to adjust status to permanent resident if there is no visa backlog in EB-2 for his nationality. Otherwise, the employee must wait until the I-140 priority date becomes current. Applications for work authorization and a travel document may be filed with the I-485.

Conclusion
The EB option for aliens of “exceptional ability” in the arts, sciences, and performing arts provides a viable alternative for certain scientists based on USCIS’s restrictive adjudication standards in EB-1A, EB-1B and EB-2 National Interest Waiver cases.

 

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