Hope this following will help
Source Link:
http://www.asianjournal.com/cgi-bin/view_info.cgi?code=00008484&category=IM
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GETTING YOUR GREENCARD AS “EB-2 ALIEN” WITHOUT LABOR CERTIFICATION
Atty. Roman P. Mosqueda, Esq.
2004-12-22 00:31:00(LA) / 2004-12-22 16:31:00(Manila)
Members of the professions holding advanced degrees or aliens of exceptional ability may be granted Employment-Based Second Preference (EB-2) category, which leads to adjustment of status to lawful permanent resident, without obtaining labor certification, if waiver thereof is granted.
Although allowed by
Section 203(b)(2) of the Immigration and Nationality Act (INA), EB-2 category is difficult to obtain because it involves a grant of National Interest Waiver which bypasses labor certification.
By Approval Notice dated December 2, 2004, the California Service Center in Laguna Niguel granted EB-2 category to a Colombian attorney and businessman, who is presently in H-1B status as Production Executive Director of the Luca Group, Inc.
His name is withheld to protect his privacy. The Author represented him in his previously-approved H-1B petition, in his EB-2 (Form I-140, Immigrant Petition For Alien Worker) petition, and in his concurrently filed adjustment of status to lawful permanent residence, for which he is awaiting notice of interview.
EB-2 Category Requirements:
Under Section 203(b)(2)(A) of the INA: “In general. – Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraph (1) (on EB-1 category for priority workers), to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.”
And under
Section 203(b)(2)(B) of the INA, an EB-2 category applicant may waive the job offer and labor certification requirement, if granted national interest waiver by the Attorney General, through the U.S. Citizenship and Immigration Services (CIS).
If the CIS does not waive the job offer and labor certification requirement, the EB-2 category petition seeking national interest waiver will be denied, but the otherwise EB-2 qualified applicant can file an EB-3 professional or skilled worker petition, after the issuance of the labor certification, or refile the EB-2 petition with the labor certification.
According to Memo of Cronin, Acting Associate Commissioner, of March 20, 2000, an advanced degree is shown by a master’s degree or its equivalent in education and work experience.
And according to 8 C.F.R. Section 205.5(k)(3)(i)(B): “To show that the alien is a professional holding an advanced degree, the petition must be accompanied by: (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.”
Exceptional ability refers to “rare or unusual talent, or unique or extraordinary ability.” See Matter of Medical University of South Carolina, 17 I&N Dec. 266(1978).
National Interest Waiver Requirement:
A job offer and labor certification may be waived by the CIS, if it is in the national interest of the United States to do so. The EB-2 petition (Form I-140, $190 filing fee), letter h of Part 2, is checked to apply for National Interest Waiver.
And Part B, on Statement of Qualifications Of Alien, of the Application For Alien Employment Certification (Form ETA 750, no filing fee) is submitted with supporting evidence on the national interest waiver application. See 8 C.F.R. Section 204.5(k)(4)(ii).
The criteria for national interest waiver were delineated in Matter of New York State Department of Transportation, 22 I&N Dec. 215 (1998), as follows:
1. the applicant seeks employment in an area of substantial intrinsic merit; 2. the benefit of the applicant’s employment will be national in scope; and 3. the national interest would be adversely affected if a labor certification were required.
It is this last criterion which makes the waiver difficult to obtain. Indeed, the applicant must prove that the contribution of his/her rare or unique skills substantially outweighs the conflicting national interest in protecting American workers through the labor certification process.
Qualifications Of Colombian Attorney And Businessman:
The Colombian EB-2 applicant is currently the Executive Director of The Luca Group, Inc., a Hispanic marketing and advertising Company based in Walnut, California. He is on H-1B renewal status, earning $65,000.00 annual salary.
He completed the five-year full-time program for lawyers at the University of Sto. Tomas in Bogota, Colombia. He further studied Commercial Law at the University of Javeriana, Administrative Law at the University of Rosario, and State Contracting at the University Externado of Colombia.
He was National Juridical Advisor of P&V Diseno and Eventos Ltda. Organization and Fonditeck EMA. Corporation in 1996. He was General Manager of MOA International Organization from 1994 to 1999.
He was also the Customer Service Manager of Hippocampus, Inc. from 1994 to 2000, while practicing law in his law office from 1995 to 2000.
He entered the United States as a tourist (B-2 visa) on November 23, 2000, and obtained H-1B status on February 12, 2002. And without Request for Evidence, the California Service Center granted EB-2 category to him on December 2, 2004.
(The Author, Roman P. Mosqueda, personally represented the Colombian attorney and businessman and obtained H-1B and I-140 (EB-2 category) approvals for him. He was featured in the February 21, 2003 Los Angeles Times article on “Convicted Cambodians Fear Deportation”, as the immigration attorney of Chanphirun Meanowuth Min, the nephew of Lon Nol, who was in removal proceedings in the Los Angeles Immigration Court, and for whom he successfully obtained final withholding of removal. He is admitted to practice law in California, New York and Philippines, and is in good standing thereat. He graduated magna cum laude in B.S. Economics from Ateneo De Manila University, and cum laude from the University of the Philippines College of Law. He was President of the Ateneo De Manila University Student Council and University Councilor of the University of the Philippines Student Council. He was President of the National Students League of the Philippines.
He gives free initial and confidential consultation in his Los Angeles Office at 3350 Wilshire Blvd., Suite 735, Los Angeles, CA 90010, Telephone Number: (213) 252-9481; in his Long Beach Office at 1045 E. Anaheim St., Long Beach, CA 90813, Telephone Number: (562) 218-8600; in his Panorama Office at 14418 Chase St., Ste. 203, Panorama City, CA 91402, Telephone Number: (818) 920-1129 or his e-mail at
rpm_law@yahoo.com.
To know more about him and his practice, please visit his website at
www.romanmosqueda-lawoffices.com.)
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