EB-2: National Interest
§ 203(b)(2) the
Immigration and Nationality Act of 1952 ("Act"), Pub.
L. No. 82-414, 66 Stat. 163,
8 U.S.C. § 1153(b)(2), 8 C.F.R. § 204.5(k).
(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.
The "Employment Based Second Preference" petition is an immigrant petition which allows an alien to apply for lawful permanent residence in the United States on the basis of an offer of employment from a United States employer or their proven benefit to the United States national interest. The term "national interest" is not strictly defined, but rather depends upon the flexible application of a variety of factors relating to the applicants prospective contribution to the United States. The second preference category includes: (1) members of the professions holding advanced degrees who are to be employed in positions requiring their degrees, and (2) aliens of exceptional ability in the sciences, arts, and business who are able to demonstrate a degree of expertise significantly above the ordinary.
In order to be eligible to apply for lawful permanent residence in the Employment Based Second Preference category, the alien must be the beneficiary of an approved petition from U.S. INS classifying him or her as eligible to immigrate in the Second Preference category.
The Second Preference petition must be accompanied by a labor certification application (See Labor Certification Application) and an offer of employment from a United States employer or proof that the alien benefits the national interest.
The first step is the filing of a labor certification application on behalf of the alien by the employer, if required. The second step is the filing of an "Immigrant Petition for Alien Worker" by the employer on behalf of the alien on U.S. INS Form I-140. This petition is filed with the U.S. INS office that has jurisdiction over the place of employment or intended employment. The INS approval of the I-140 makes the alien eligible to file an application for permanent residence in the Second Preference category.
The filing date of the labor certification application will establish a priority date for the alien. The alien cannot file an application for permanent residence status until the priority date is approved and current.
If an alien with an approved I-140 Petition is residing in the United States in a valid status at the time the priority date becomes current, the alien may file for Adjustment of Status on U.S. INS Form I-485. See Adjustment of Status. If the alien is not residing in the United States when the priority date becomes current, he or she must file an application for an immigrant visa at the United States Consulate in his or home country, based on the INS approval of the Petition for Alien Worker. See Consular Processing.
For more information about Employment Based Immigration, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.