At the end of last year, the Department of Homeland Security published a Federal Register notice establishing an automatic nine-month extension of Temporary Protected Status (TPS) and work authorization benefits for TPS holders from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. The previous TPS and work authorization period was set to expire on January 4, 2021. The notice extends TPS status and work authorization based on that status through Oct. 4, 2021.
In today’s culture of immediate gratification, people are always looking for the quickest way to get to their goal. However, when it comes to your immigration status and future, beware of promises of quick results—for permission to work and travel—especially if your goal is to legally remain and work in the United States. This article introduces an important employment-based preference category: the employment-based second preference (EB-2) category.
What is the EB-2?
The EB-2 is an employment-based preference group which covers individuals of the professions holding an advanced degree or its equivalent or foreign nationals of exceptional ability. An advanced degree can be demonstrated through possession of an actual advanced degree (Master’s, Doctorate, Juris Doctor) or bachelor’s degree plus five (5) years of progressive work experience in the field. Exceptional ability requires a showing that you have “a degree of expertise significantly above that ordinarily encountered” in your field of endeavor.
If applying under the EB-2 preference group, the application must usually be accompanied by an approved Application for Permanent Employment Certification from the Department of Labor on ETA Form 9089. The Department of Labor process of the EB-2 requires two steps:
- Prevailing Wage Determination (ETA Form 9141). This application takes approximately 130 days to process; and
- Permanent Employment Certification (ETA Form 9089 known as “PERM”). This application takes approximately 175 days for adjudication and requires an employer to recruit for the position and among other things, interview applicants who are minimally qualified and have a valid business reason to reject applicants other than yourself.
Only after these steps are completed can you then file an I-140 (your employer’s petition with proof of ability to pay the prevailing wage) and I-485 application (your application for permanent residency, which is what gives rise to the work and travel permit) with United States and Citizenship Services (USCIS).
What is the National Interest Waiver (NIW)?
One important component of the EB-2 is the availability to also apply for the National Interest Waiver (NIW). The NIW is a request to waive the above-noted two steps with the Department of Labor. In other words, if you qualify for the NIW you do not need a sponsoring employer or job offer and if immigrant visas are available, immediately file your applications with USCIS. Because the requirement of a job offer and therefore the PERM process would be waived, the U.S. government takes a hard look at these cases. After all, an applicant for an NIW is affirmatively stating that it is in the national interest of the United States to admit him/her for permanent residency, without a job.
While this process is considerably timesaving, the NIW also has its own legal requirements. Importantly, the NIW has three specific requirements (even if you are attempting to qualify as an advanced degree professional and not as a foreign national of exceptional ability):
- The proposed endeavor has both substantial merit and national importance;
- You are well positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
In short, to be eligible to apply for the EB-2 NIW you must meet each of the following requirements:
|Bachelor’s degree + five years of progressive works experience in the field; or Advanced degree in the field; or Exceptional ability in the sciences, arts, or business.||The proposed endeavor has both substantial merit and national importance.|
|You are well positioned to advance the proposed endeavor.|
|It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.|
Each requirement for EB-2 and NIW has its own criteria and should not be confused to be equal. This can lead to unforeseen denials and irreparable damages, such as being prevented from applying for future changes of status to other categories, or worse yet, being placed into removal proceedings. Even if you are statutorily eligible according to the above criteria, this does not mean your case will be automatically approved. Instead, you still must satisfy certain standards imposed by caselaw and demonstrate that you merit a favorable exercise of government discretion.
While the EB-2 NIW is a viable option for some, and whether through us or other qualified professionals, please make sure that you do not allow a case to be filed upon your behalf until a detailed analysis has been completed to make sure that it is the best option for you and your family’s future here in the United States because if it sounds too good to be true, it probably is.
 Current processing times of all Department of Labor Forms are available at: https://flag.dol.gov/processingtimes
 This processing time does not include the additional time if the Department of Labor issues an audit. If an audit is issued one can expect an additional 4-6 months to this process. See generally 20 C.F.R. § 656.20
 Note that you may only file both the I-140 and I-485 concurrently if the date on the visa bulletin for your country is current. For more information on the visa bulletin please follow this link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-january-2021.html
THAMYS C.P. GAERTNER
ASSOCIATE ATTORNEY – SALT LAKE CITY
Thamys C.P. Gaertner is an Associate Attorney in the employment-based department of Wilner & O’Reilly, APLC’s Salt Lake City office.
Ms. Gaertner earned her bachelor’s degree in political science from the University of Utah and her Juris Doctor from the Sturm College of Law at the University of Denver. During her time in law school, Mrs. Gaertner worked as a student volunteer with the United States Citizenship and Immigration Services (USCIS), Rocky Mountain Immigrant Advocacy Network (RMIAN) and the Denver immigration court. She also worked as a research assistant and authored multiple articles on various “crimmigration” topics, served as a staff editor on the Criminal Law Review and was awarded the “Academic Scholastic Excellence Award for Oral Advocacy.”
Prior to joining Wilner & O’Reilly, Ms. Gaertner worked as an Attorney Advisor for the Aurora immigration court in the Executive Office for Immigration Review (EOIR) of the Department of Justice. In that position, she researched and drafted decisions on complex removal cases.
During her free time, Ms. Gaertner enjoys playing and watching soccer, reading, hiking, traveling, and spending time with her wife and their French Bulldog, Louis.
Languages: English, Portuguese, Spanish