CONTENTS
- 1. Employment-Based Immigration (EB‑2) | A Program for Highly Educated and Specially Skilled Persons
- 2. Employment-Based Immigration (EB‑2) | Eligibility Requirements
- - Advanced Degree Professionals
- - Persons of Exceptional Ability
- 3. Employment-Based Immigration (EB‑2) | PERM·NIW
- - NIW (National Interest Waiver) Strategy
- 4. Employment-Based Immigration (EB‑2) | Immigrant Petition Process
- - Accompanying Family Members' Entry
- 5. Employment-Based Immigration (EB‑2) | Post-Petition Procedures
- - Points of Caution and Risk Management
1. Employment-Based Immigration (EB‑2) | A Program for Highly Educated and Specially Skilled Persons
Employment-Based Immigration (EB-2) is one of the employment-based immigrant visas under U.S. immigration law.
Under immigration law, approximately 140,000 employment-based immigrant visas are issued each fiscal year (October 1 to September 30 of the following year).
Among these, EB‑2 is the second-preference category, an opportunity given to holders of an advanced degree or to professionals with exceptional ability.
When applying for EB‑2, the first step is generally labor certification (PERM).
Based on this, a U.S. employer files the I‑140 petition.
However, where there is an exception, such as a National Interest Waiver (NIW) or certain occupations, the applicant may petition directly without labor certification.
2. Employment-Based Immigration (EB‑2) | Eligibility Requirements
Employment-Based Immigration (EB‑2) applies mainly to applicants who fall into the following two subgroups.
If an applicant meets the requirements below, prepares the supporting documents, and satisfies all of the job requirements specified in the labor certification, the applicant may proceed with the Employment-Based Immigration (EB‑2) petition.
Advanced Degree Professionals
A person who holds a bachelor's degree or higher from a U.S. university or its foreign equivalent, or who has at least five years of experience in a related professional field, is regarded as an advanced degree professional.
In addition, the requirements must be satisfied through an approved permanent labor certification or a waiver.
[Professions Under Immigration Law]
- Architect
- Engineer
- Attorney
- Physician
- Surgeon
- Professor
Persons of Exceptional Ability
The applicant must possess above-average, exceptional ability in the sciences, arts, or business and meet at least 3 of the following 6 criteria.
Artists, athletes, and entertainers who can contribute to U.S. cultural enrichment and the like also meet the eligibility requirements for employment-based immigration (EB‑2).
- A degree from a college, graduate school, or other educational institution related to the field of ability
- At least 10 years of full-time experience in the relevant occupational field
- A license or certification to perform the occupation
- Salary or compensation above the average, demonstrating ability
- Membership in a professional association
- Recognition of contributions by experts, government agencies, and organizations
3. Employment-Based Immigration (EB‑2) | PERM·NIW
The U.S. Department of Labor's Permanent Labor Certification (PERM) is a system through which an employer arranges to permanently hire a foreign worker.
Before filing the worker's immigrant petition, the U.S. employer must obtain PERM certification.
The Department of Labor grants certification after a rigorous review of whether there are sufficient U.S. workers who are able, willing, qualified, and available to accept the position in the relevant field of employment, and whether the hiring would adversely affect other U.S. workers.
① Overview of Labor Certification
A system under which the U.S. Department of Labor (DOL) permits the hiring of foreign nationals on the premise that U.S. workers are given priority consideration
Filing of the ETA‑9089 form is required
② Schedule A Occupation Exception
Schedule A occupations (professional nurses, physical therapists, and advanced fields in the sciences and arts) are exempt from labor certification
③ Employer Verification Procedures
During labor certification, records of U.S. recruitment advertisements and interviews must be maintained
If improper procedures are detected, reporting and penalties may follow
NIW (National Interest Waiver) Strategy
A national interest waiver is a waiver program that grants permanent residence without the labor certification process when a holder of a master's degree or higher with exceptional ability in fields such as science, technology, or engineering benefits the national interest of the United States.
Because an applicant may self-petition for a national interest waiver without an employer or sponsor, it is also a program that entrepreneurs and business owners can use.
In this case, however, the applicant must demonstrate through various supporting materials that he or she is a person who benefits the U.S. national interest.
[NIW Review Criteria]
- Substantial Merit & Importance : National importance of the proposed work / positive effect
- Ability & Feasibility : Proof that the applicant is well positioned to carry out the work
- Usefulness Relative to Labor Certification for the National Interest : Contribution to the national interest even without labor certification
4. Employment-Based Immigration (EB‑2) | Immigrant Petition Process
An employment-based immigration (EB‑2) petition uses Form I-140.
The U.S. employer files the petition by submitting Form I-140 on the applicant's behalf.
When applying for a national interest waiver, however, the applicant may file Form I-140 directly.
[Items to Submit]
- Form I‑140
- ETA‑9089 PERM certification (if required)
- Degree/educational credentials
- Letters of recommendation for experience
- For NIW cases, evidence relating to the national interest
An Immigration Attorney's Tips for Preparing the EB-2
1. Prepare the fees payable to U.S. Citizenship and Immigration Services (non-refundable)
2. Attach supporting evidence such as letters of recommendation, publications, and award records
3. Draft the job offer section clearly
Accompanying Family Members' Entry
Employment-based immigration (EB‑2) allows family members to enter together.
The applicant's spouse and unmarried children under 21 become eligible to apply for entry into the United States under E‑21 and E‑22 immigrant status.
They too must complete the required application forms to obtain the relevant documents, pay the fees, and undergo a medical examination.
5. Employment-Based Immigration (EB‑2) | Post-Petition Procedures
[Checklist of Documents Required for the Immigration Process]
Once all documents are ready, the National Visa Center (NVC) schedules an interview, which is conducted at an embassy or consulate.
Fingerprints are also taken on the day of the interview.
All applicants must complete a medical examination and vaccinations in advance, and entry into the United States itself may be denied if false statements are made or forged documents are submitted.
After the visa is approved, the applicant receives a passport bearing the visa and a sealed envelope of documents.
This envelope must not be opened until the U.S. entry inspection, and the immigrant fee must be paid to U.S. Citizenship and Immigration Services before entry in order for the permanent resident card to be issued.
Finally, admission is decided by CBP, and the immigrant visa is valid for 6 months from the date of issuance.
Points of Caution and Risk Management
Key Risk | Response Strategy |
Denial of Labor Certification | If the evidence is insufficient, reconsider the strategy and file an appeal |
Mismatch in Experience | If the length of experience or the job duties do not match, organize the letters of recommendation and strengthen the explanation of scope |
Insufficient NIW Evidence | If national interest or importance is lacking, obtain letters of cooperation from government, industry, and professional associations |
Errors in Submitted Documents | If there are misentries on the I-140 application or missing required materials, supplement and correct them |
Even with a sponsor's help, a Korean applicant must systematically prepare every stage, from labor certification preparation to I‑140 supporting evidence, the NIW national interest strategy, and the accompanying family immigration plan.
In particular, an immigrant visa applicant should not make travel plans, dispose of property, or resign until the visa is issued.
To establish an approval strategy so that the employment-based immigration timeline is not delayed by missing materials or insufficient evidence, consultation with a legal professional and a tailored plan should come first.
Develop your employment-based immigration (EB‑2) strategy together with an immigration attorney who holds qualifications as a foreign legal consultant for U.S. law (United States), a foreign attorney (United States), and a U.S. certified public accountant.
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