As mentioned in our posts, there are several types of American visas, but when it comes to employability-based immigration visas (EB visas), there are five categories, only two of them can be what is called self-petition with the dismissal of a job offer and therefore dismissal of the labor certification process. It is important to note that the benefit of obtaining a residence visa can be extended, in most cases, to the relatives of the qualified professional, including in this group the spouse and children under the age of 21 who have never married. The EB2 category is one of them, applicable for professionals within the areas of business, education and / or science. This type of visa is applicable to two types of professionals, as determined by American law. The first the professional should demonstrates having a graduate degree, either in the United States or an equivalent degree. The equivalence can be made by proof of full and continuous exercise of 5 years of profession, after receiving the bachelor's degree, or through a postgraduate diploma issued by a non-American educational institution, but which must be compared to an American graduation diploma, by a specialized company. As a curiosity, this degree matching is done through specialized companies and costs about $ 100 per diploma.
The second type of professionals with exceptional skills are those who manage to fulfill a minimum of 3, among the 6 criteria established by law. The verification of these criteria is done through documentation that shows: (i) the professional's academic background in his / her area of activity, whether through a diploma, certificate or other document; (ii) ten years of profession; (iii) a license to practice his profession, (iv) because the professional is a member of professional associations in his area, (v) for having received or receiving remuneration that demonstrates the exceptionality of his work and / or (vi) recognition obtained from its professional partners, society and / or clients. Comparable evidence is admitted for such evidence. As mentioned before, this is one of the rare requests that allows professionals to make their own petition request (self-petition), eliminating the need for a job offer and, consequently, the labor certification process. To understand this feasibility and exception, it is important to understand the main aspects of visa applications, which is made through an employer / visa sponsor. The main rule for these professionals to benefit from an EB2 residence visa, which will consequently serve as the basis for their “Green Card”, is that they have a job offer from an American employer who, consequently, will be the applicant and sponsor visa, for the benefit of the professional. For the employer to be able to apply for a professional visa, it is necessary to first seek the American Ministry of Labor and complete a certification process for the desired job offer. In a brief overview, this process will demonstrate that the employment proposal is not prejudice to the American labor market.
The employer will only be able to apply for a visa with the American immigration, after obtaining the certification that the proposed job offer is not prejudice to the American labor market. The certification process determines, among other things, the prevailing salary of the professional who will fill the job. In this sense, who will determine the professional's remuneration is not the employer, but the Ministry of Labor, based on the qualifications required by the job offer. In the future, after approval of the visa, the remuneration and characteristics of the job offer must be respected by the employer and the professional, under the terms of the law.
As mentioned on the other hand, the EB2 immigration visa category allows, under certain conditions, the professional to apply for the visa without the need for an American employer, that is, directly by the professional. In order to be able to make your own request, without the need of a job offer, the professional must demonstrate the combination of two factors. The first is a factor that we consider to be “objective”, listing academic background and / or professional training. On the other hand, the second factor is demonstrated through an analysis that we consider to be more "subjective", where the professional must demonstrate that he is within the American national interest.
Thus, the first part, considered objective, is done through the proof of the requirements already mentioned in this article, that is, through a post-graduate (or equivalent) and / or qualification as an exceptional professional (evidence of compliance with at least 3 of the 6 criteria established by law). With regard to the second part, demonstrating the American national interest, it is currently done through the presentation of studies based on the plans for continuing the profession of the visa applicant.
In this sense, in order to prove national interest, the professional must demonstrate that their continuity plans have substantial merit and national importance for the United States; that he is prepared to continue his plans and, finally, that, after considering the proposed plan, it is beneficial to the United States to dispense a job proposal and, consequently, the labor certification process with the Ministry of Labor (which we mentioned earlier).
The application process for this type of visa consists, in an overview, of two phases. In a first phase, the professional will be approved and qualified as a professional in the EB2 category, either through a job offer by an American employer or through a petition. In a second phase, the professional will have his personal profile, and his dependents, evaluated for the verification of any legal impediment to immigrate. Such impediments may be in the past (or even present) violations of staying on American soil, illegal work in the United States, committing crimes, identifying fraud to apply for immigration benefits, among other factors.
Still, there are two ways to apply for a visa. The first is the so-called consular processing, where the person, and their dependent family members, await the approval of the professional in the intended category, in this case EB2, and after such approval they appear at the consulate for interviews and checks on the personal profile of everyone included in the process and subsequently receive a visa to immigrate. The second form of application can be made, in certain situations, where the professional and / or their dependents are on American soil and change their intention to stay in the country (change of status). In this second case, the professional can wait for the approval of his qualification and then request the adjustment of status or, if there are visas available, make the joint request for the qualification request and also the residence visa, if the first is approved .
The feasibility analysis of the professional profile, as well as the strategy for applying for a professional visa, must be done cautiously and precisely since there are many factors that can strongly interfere in what we call the immigration profile of the people involved. Filling in documents incorrectly, as well as inconsistent statements, can damage the immigration profile of people and even notes of fraud and / or misrepresentation, which can even lead to the banning of the person from the United States. That is why it is important that the process is made with the assistance of a licensed lawyer who have academic training and adequate experience in this type of processing.