A green card application denial is a devastating immigration setback that no visa applicant wants to experience. A denial can be even worse if you are pursuing an EB-2 or other work-related immigrant visa due to the extreme amount of time, effort, and money invested into the EB-2 process. Learn how to handle a case in which your I-140 is denied and the next steps!
However, knowing the common errors that lead to green card application denial will help you guard against them in your petition. Also, if your EB-2 visa application has been denied, this article provides you with some options you can explore to reverse the decision.
EB-2 Green Card Overview
The EB-2 immigrant visa, or EB-2 green card, is an employment-based visa that is issued based on an applicant’s exceptional ability, skills, and professional background. Every year, about 40,000 of these green cards are issued to eligible foreign applicants in different professions. You may qualify for an EB-2 visa if you meet the eligibility criteria under the U.S. second preference for the employment-based category.
EB-2 Eligibility Criteria
To qualify for an EB-2 visa, you must have a profession that requires you to hold an advanced degree or its equivalent, or you can prove that you possess exceptional ability in your field.
To qualify under this first criterion, the job you apply for in the U.S. must require an advanced degree or its equivalent to perform. An advanced degree means at least a United States master’s or doctorate degree, or its foreign equivalent. You may also qualify with a bachelor’s degree if you can prove that you have at least five years of work experience in the field.
To qualify under this second criterion, you must demonstrate that you have extraordinary ability in science, business, or the arts. Your expertise in any of these areas must be above that which is ordinarily encountered in your field.
Common Reasons for EB-2 or I-140 Denied
Your EB-2 visa application can be denied for several reasons ranging from your ineligibility as an applicant or errors in filing documentation and forms. If your EB-2 visa application has been denied by the USCIS, the reason will have been stated in the denial letter sent to you. However, if you are just about to or are in the process of filing your petition, it is important to know the common pitfalls you might encounter in order to avoid them.
The EB-2 green card application involves several stages, and an applicant can experience a denial at any of these stages. The Permanent Labor Certification, the I-140 Immigrant Petition for Alien Worker, the National Interest Waiver (NIW), and Adjustment of Status are different stages people undergo in their EB-2 visa applications.
EB-2 Perm Labor Certification Denial
Being an employment-based category, the EB-2 visa application generally requires that petitioners (employers) successfully complete the U.S. Department of Labor (DOL) PERM certification process. The purpose is to ensure that there are no qualified U.S. workers available for the position who would be displaced by the foreign applicant.
It is also used to protect the interest of the foreign national applicant by ensuring that the employer will pay the prevailing wage (the right salary and compensation) for that position. Your PERM labor certification application must be granted before you can continue with other EB-2 application processes. The only exception to this is if you qualify for an NIW.
National Interest Waiver
A National Interest Waiver (NIW) is for those who are requesting the labor certification be waived. You must be able to demonstrate that your admission will be in the national interest of the United States. In the case of an EB-2 NIW, you can self-petition the case as opposed to needing an employer to act as the case petitioner and then having them obtain a LCA prior to filing the I-140 on your behalf. To prove your admission will be in the national interest of the U.S. there is a three-prong test. It involves:
- Demonstrating that the proposed endeavor has substantial merit and national importance
- The applicant is “well positioned to advance the endeavor”
- It is a benefit to the U.S. to waive the job offer requirements and labor certification
Myths About National Interest Waivers
One common myth you may have heard is that if you have a work permit and have applied for an adjustment of status at the same time then your EB-2 NIW will be approved. This is not the case and your application can still get denied since the adjustment of status application will most likely have an application for work authorization and travel accompanying it. It is very likely that the EAD and travel permits get processed first so you receive those before your EB-2 NIW petition is even processed. In the event that you do have your EB-2 NIW denied then your work authorization will also be terminated and you’ll get a letter from USCIS stating the reason of the denial. The best way to ensure a favorable outcome is to work with a qualified immigration specialist from VisaNation.
Another myth you may have heard is that you can qualify for an NIW by having a degree and many years of work experience. These alone are not sufficient. You still need to pass the three-prong test mentioned above.
Common Reasons for PERM Labor Certification Denial
Below are some of the most common reasons for PERM denial:
Improper Filing of the ETA 9089 Form
If the information on the ETA 9089 does not match the information provided on the job offer, this can raise red flags, which might eventually lead to denial.
Failure to Detail the Beneficiary’s Work Experience
In the ETA 9809 form, the EB-2 visa beneficiary’s skills, work experience, and other information that show you are eligible for the position must be included. Additional information such as your place of birth and academic qualifications must also be provided to help the adjudicating officer determine your eligibility.
Failure to Respond to the Email Questionnaire
After submitting the ETA 9089 form, the DOL may send an email directing the petitioner to answer some questions about the application. This questionnaire must be replied to within seven days of receipt. If your employer fails to do so within the given timeframe, the PERM certification application will likely be denied.
Failure to Adhere to Advertising Guidelines
Prospective employers sponsoring an EB-2 visa are expected to advertise the position in major publications. The advertisement has guidelines and a timeframe that must be followed strictly. One of the requirements is that the ads must be published in a major newspaper on two consecutive Sundays. If a petitioner fails to comply with those instructions or any others, the PERM application can be denied.
EB-2 Form I-140 Denial
Just like most other employment-based green card applications, your EB-2 visa will generally be sponsored by an employer. The I-140, Immigrant Petition for Alien Worker must be filed by your prospective employer on your behalf. The form must be submitted with the correct information along with well-organized documentation showing that both the petitioner (the employer) and you, the beneficiary, meet the eligibility requirements for this category. If your I-140 is denied based on ineligibility for the EB-2 visa, all other related applications filed for that visa category will also be denied, including the I-485, I-765, and I-131 forms.
Common Reasons for I-140 Denial
Because I-140 is a big part of the EB-2 application process, the denial reasons for the form are also highly relevant for the green card.
If the Position Does Not Qualify for EB-2 Category
As stated above, a position will be deemed qualified for the EB-2 visa category if it requires a doctorate degree, master’s degree, or a bachelor’s degree with at least five years of relevant work experience. This requirement must be clearly stated in the labor certification application. Any inconsistency between the wording in your PERM certification and I-140 petition can lead to a request for evidence or even a denial.
For instance, if it was stated in the PERM application that the position only requires a bachelor’s degree and that your employer will accept a three-year bachelor’s degree, such a position will likely not be considered qualified for the EB-2 visa. A three-year bachelor’s degree will be considered not equivalent to the U.S. four-year bachelor’s degree. Many EB-2 green card applications are denied based on this common error.
Not Meeting the Qualification Requirements for the Position
EB-2 visa applicants are required to demonstrate that they possess the minimum work experience stated on the labor certification. This usually involves submitting education credentials and letters from the applicant’s former employers. If the I-140 adjudicating officer isn’t convinced that you have provided sufficient documentation to establish this requirement, your petition may be denied by the USCIS.
Inability to Pay the Prevailing Wage for the Position: Prospective U.S. employers sponsoring the EB-2 visa must be able to demonstrate the ability to pay the applicant wage due for the position advertised. It is required for an employer to show this ability to pay the prevailing wage right from the moment the priority date is established and must continue until the applicant has obtained his or her EB-2 green card. Copies of federal tax returns, annual reports, and financial audits are some of the documentation that must be submitted by the employer to show this ability.
Top Reasons for National Interest Waiver Denial
The National Interest Waiver (NIW) is a special feature of EB-2 visa application that allows applicants to circumvent the PERM Labor Certification requirement and avoid having to have a sponsoring employer. Before it can be granted, you must prove that you possess exceptional ability in your field and you must meet the other eligibility criteria. You must also demonstrate that it will be a great benefit to the United States if the labor certification requirement is waived for you.
If your NIW application is approved, you will be able to file your labor certification directly with the USCIS and also self-petition for your EB-2 visa without being sponsored by any employer. The following are some of the top reasons for NIW denial.
- Failure to present acceptable reference letters
- Insufficient evidence that you possess the exceptional ability that will advance your work
- Failure to present sufficient evidence of your past achievements
- Failure to show that you have the required qualification for the position as stated in the USCIS requirements.
- Failure to show that your work will have a substantial positive impact on the U.S.
What to Do If Your EB-2 Visa Application is Denied
Whether you have already received a denial letter or you are still processing your application, the good news is that your EB-2 visa denial doesn’t necessarily mean the end of the process. There are certain provisions that you can explore to get a favorable decision. However, it is best that you involve an experienced immigration attorney when doing this. You need an expert to help you argue your case as to why you deserve a favorable decision. The following are some of the available routes to take after a denial:
File a Motion
You can file a motion requesting that the USCIS reopen or reconsider your case. A motion to reopen must be based on new facts and supported by documentary evidence. This means that you now have different evidence from what was previously submitted.
A motion to reconsider, however, is used to establish that the immigration officer based his or her decision on an incorrect application of the law. You must submit your motion to reconsider request with relevant precedent, statutory provision, adopted decision, or a statement by the USCIS. Both motions to reopen and reconsider may be combined in your request.
Appeal the Decision
You can also appeal the decision if you feel it was wrongfully made. Your appeal will be reviewed by the same USCIS office that issued the denial. The office will determine whether to make a favorable decision and grant your request or to uphold the denial. If in the end, the office does not reverse the decision, it will forward your appeal to the Administrative Appeals Office (AAO) for appellate review. You may have your case resolved at the initial review by the USCIS office or at the appellate review by the AAO.
Explore Other Visa Types
If you have tried the above avenues and the denial is not overturned, you may want to try other visas. Though this may not seem like the best option considering the time and money you’ve spent, it may be the only way to obtain your green card. As long as you haven’t committed any crime or contracted any infectious disease that can make you inadmissible, you can always explore other options such as the EB-3 or a family-based green card.
EB-2 Approval Rate
Generally, the EB-2 visa has a high approval rate, averaging about 93% based on USCIS data, so chances are your petition will be approved. India and China tend to have the highest number of applicants for EB-2 visas and the denial rates are about 6% and 4% respectively. In 2019 there were just over 78,000 applications in the EB-2 category and 83% of them were approved. Compared to the EB-1 visa which shares some similarities to the EB-2, the approval rate is about 80%.
How VisaNation Law Group’s Immigration Attorneys Can Help
Over the past several years, the denial rate of green card application has been on the rise. One of the top reasons is that too many applicants would rather go through the visa application process by themselves instead of hiring professionals from the beginning. No matter how qualified or exceptional you may be in your field, your EB-2 visa will not be approved if your documentation and forms are not filed well. Your best bet is to hire a professional EB-2 immigration lawyer to avoid an I-140 denied situation.
VisaNation Law Group’s team of highly experienced green card attorneys have a long track record of EB-2 visa successes. They can help you gather evidence, prepare reference letters, and file your petitions for you. Also, if your application had already been denied, they can help you appeal the decision. To get in touch and schedule a consultation with VisaNation Law Group’s expert EB-2 lawyers today, fill out this contact form.