How to Avoid EB-2 Visa Denial?

The EB-2 (employment-based second preference) visa allows you to obtain permanent residency or a green card to live and work permanently in the United States.

 It requires that you successfully demonstrate eligibility as someone with exceptional ability in the arts, business, or sciences or have an advanced U.S. degree or its foreign equivalent, along with a qualified U.S. employer who will petition on your behalf. 

To learn more about the EB-2 visa, click here.

The visa application process for EB-2 requires a lot of effort. It can be grueling, time-consuming, and complicated. 

The United States Citizenship and Immigration Services (USCIS) can deny your visa application for several reasons, which they will highlight and state in the denial letter they will send to you. 

However, it is best to avoid pitfalls that could lead to a denial in the first place.

Read along and use this guide to help prepare you and avoid common mistakes of EB-2 visa denial.

Eligibility

Ensure that you meet all the eligibility requirements and criteria for the visa to avoid EB-2 visa denial. 

The main requirements namely a labor certification (a U.S. job offer) plus either of the two:

• Ensure that you are eligible as someone with an advanced degree. An advanced degree is above a U.S. bachelor’s degree (i.e., a master’s or a Ph.D.) or its foreign equivalent. Alternatively, you can qualify with a bachelor’s degree or its foreign equivalent if you have at least five years of progressive work experience in your specialty.
  To learn more about how to demonstrate your advanced degree, click here.

• Alternatively, ensure that you are eligible as someone with exceptional ability in the arts, business, or sciences. An exceptional ability refers to a degree of expertise in your specialty or field that is significantly above that ordinarily encountered in your field. In other words, you possess the necessary skills, experience, or expertise to be an expert in your field.
  To learn how to demonstrate your exceptional ability effectively, click here.

Common mistakes in determining eligibility:

• Misunderstanding the criteria

This is a common mistake applicants make, assuming that they meet the requirements without carefully reviewing the detailed criteria by the USCIS. 

For instance, a U.S. bachelor’s degree refers to a four-year bachelor’s program. Therefore, if you have a three-year foreign bachelor’s degree, it may not be considered a foreign equivalent. 

To ensure your qualifications are acceptable, it is recommended to check with a USCIS-recognized credential evaluation service agency.

• Insufficient evidence or documentation

Inadequate documentation is a common mistake applicants make, such as not providing enough evidence to support or substantiate their qualifications, exceptional ability, or achievements in their specialty. 

To avoid this, you must gather comprehensive documentation to support your claims. It is recommended to check with an experienced immigration attorney to determine which of your documents are relevant, as it is also ill-advised to clutter the petition with irrelevant documents that may result in an unfocused case that the USCIS adjudicator may reject.

• Poor organization or presentation

Failure to properly prepare and organize the documents can make it challenging for USCIS adjudicators to review your application. 

Ensure that your documentation is organized and presented clearly and concisely to make the evaluation process smoother.

• Inconsistent or inaccurate information

Failure to provide accurate or consistent information in the application can raise concerns about the applicant’s credibility and attention to detail. 

Ensure you review all your forms and documents to ensure they are complete, accurate, and consistent. It is important to maintain professionalism. 

Moreover, missing a signature where it should be can result in a denial, so it is best to double-check everything before submission.

PERM Labor Certification

Since the EB-2 visa is employment-based, it typically requires that U.S. employers (petitioners) successfully complete the Program Electronic Review Management System Labor Certification (PERM Labor Certification) process. 

This process was created to ensure that foreign workers will not fill job positions that could otherwise be filled by qualified U.S. workers, thus protecting the U.S. job market and its citizens.

A labor certification is obtained from the U.S. Department of Labor, verifying that there are no qualified U.S. workers available for the job position you are seeking in the U.S. This is an important requirement for the visa to avoid EB-2 visa denial. 

Follow the labor certification process diligently and provide all the necessary documentation and evidence to support your case.

This process can be waived if you qualify for a National Interest Waiver (NIW), which will allow you to forgo the requirement of securing a U.S. employer or job offer. 

With an NIW, you can self-petition. To learn about the NIW requirements and process, click here.

Common mistakes in securing a PERM labor certification:

• Failure to demonstrate adequate job advertising

A common mistake that leads to a failure in acquiring a PERM labor certification is inadequate job advertising. 

Employers must demonstrate that they have actively recruited for the position you are filling and have yet to find qualified U.S. workers. 

Therefore, failing to demonstrate adequate job advertising will not meet the requirements for a PERM labor certification. After all, its purpose is to protect the U.S. job market and its citizens first and foremost.

• Failure to respond to audit requests

Sometimes, the U.S. Department of Labor may request an audit of the PERM certification. 

Failing to respond to this request or not providing the requested document within the specified timeframe will result in denial. It is recommended to respond to requests and provide all requested information promptly.

Complete and Thorough Documentation

One of the most important aspects of the EB-2 visa application process is demonstrating sufficient evidence to support the petition. 

Ensure that all your relevant evidence thoroughly supports your petition.

Here is a checklist of the most commonly used documents as evidence:

• Official academic transcripts and copies of your degrees, diplomas, and certificates

• Credential evaluations from USCIS-recognized agencies if your degrees are foreign equivalents

• Proof of your professional licenses and certifications

• Specialized training certifications relevant to your expertise

• Letters of recommendation from professors, peers, and other experts in your field

• Letters from previous and current employers demonstrating your work experience and job responsibilities

• Employment contracts

• Pay stubs, tax returns, or income statements demonstrating employment

• Awards, patents, certifications, presentations, and other proofs of contributions and achievements in your field

• Memberships in professional associations or organizations related to your field

• Job offer letter from your U.S. employers to showcase the position, job responsibilities, salary offered, and other terms

• Business registration documents of your U.S. employer

• Financial statements of your U.S. employer demonstrating their ability to pay your wage

• Testimonials from your colleagues, peers, and clients attesting to your exceptional ability or achievements

• Letters of support from other experts in your field

• Expert opinions, publications, and research papers highlighting the significance of your contribution to your field

• Copies of your published papers, research, articles, or books

• Citations, reviews, or any recognition of your published works

• Evidence of your participation as a reviewer or a judge in your specialty

• Evidence demonstrating your exceptional ability

• Awards, honors, or prizes you received for your exceptional ability

• Evidence of a high salary in relation to others in your specialty

• Certified translations of any documents not in English

• Copies of your passports, birth certificates, and other personal identification documents

• Recent passport-sized photographs meeting USCIS specifications

Here are the forms for the EB-2 visa:

• Form I-140 (Immigrant Petition for Alien Worker)

• Form ETA-9089 (Application for PERM Labor Certification) – applicable to non-NIW applicants.

• Form ETA-750A (Application for Alien Employment Certification)

• Form ETA-750B (Statement of Qualifications for the Exceptional Ability Immigrant Visa) – applicable to applicants with exceptional ability.

• Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) – applicable if represented by an attorney.

• Form I-485 (Application to Register Permanent Residence or Adjust Status) – applicable if already present in the U.S. and applying to adjust status.

It is recommended to check with your immigration lawyer for which forms apply to you.

Legal Guidance

Consider seeking legal assistance from an experienced immigration lawyer with expertise in employment-based visas. 

Immigration lawyers can help you navigate the complex EB-2 visa application process, review your documentation and evidence, and provide tailored advice specific to your circumstances to present a strong case.

Immigration lawyers are also updated with the latest policy information since the USCIS may alter or change regulations and criteria that may affect your application.

Click here to consult with Immigration Business Plan to access our pool of experienced immigration attorneys.

Interview

Prepare for your interview and review your application materials. Be ready to answer questions about your qualifications, eligibility, work experience, and intentions in the U.S.

Some of the common questions asked during an EB-2 visa interview includes:

• Can you describe your work experience and job responsibilities?

• Have you been promoted or received recognition in your career?

• Can you provide details about the job offer you have received from your U.S. employer?

• What will be your job responsibilities and duties in the U.S.?

• How did you find this job opportunity?

• Can you explain why your U.S. employer chose you for this position?

• Do you have any intention of permanently settling in the U.S.?

• How do you plan to financially support yourself while in the U.S.?

• Can you provide evidence of your financial resources or sponsorship for your stay?

Common mistakes applicants make during the interview that lead to EB-2 visa denial :

• Inconsistent or contradictory answers

Any inconsistent or contradictory statements made during the interview can raise concerns about your credibility. 

Ensure your responses are consistent with your application’s information and supporting documents.

• Insufficient knowledge of the employer or job offer

Ensure that you understand the nature of your position, including your duties, and articulate why you are the right candidate. 

Insufficient knowledge can create a negative impression and question why you were chosen for the position.

• Insufficient communication skills

Language barriers and ineffective communication can hinder the interview process.  

It is important to demonstrate strong communication skills, especially in English, to convey your qualifications effectively, reassuring the USCIS officer of your ability to perform your duties and communicate in the U.S. effectively.

• Inability to explain the significance of your achievements

It can weaken your case if you have provided significant contributions in your field or achievements but cannot adequately explain their impact. 

Remember that the USCIS officer is less knowledgeable than you are in your field of expertise; thus, it is important to communicate its significance effectively to convince them that you will become an asset to the U.S.

Hire the best consultant and attorney to ensure your EB-2 visa process is successful. Take the first step with free consultation here. 

We are working hand in hand with you to ensure your immigration success.