EB-2: A Complete List of Reasons for I-140 Denial

A green card application denial is a devastating immigration setback that no visa applicant wants to experience. A denial is worse if you pursue an EB-2 due to the time, effort, and money invested into the EB-2 process. 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. Learn how to handle a case where your I-140 is denied and the next steps!

EB-2 Approval Rate

The annual limit for FY 2023 will be higher than FY2020, though lower than FY 2021 and FY 2022. Visas not in EB1 are available in EB2, and those not in EB2 are available in EB3. Every month, DOS and USCIS take into account if visas are not in a specific employment-based category based on several factors. These are fall-up or fall-down provisions. The EB-2 I-140 petitions have an approval rate of between 83% and 96%. 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. Compared to the EB-1 visa which shares some similarities to the EB-2, the approval rate is about 80%.

Common Reasons for EB-2 Denial

Your EB-2 visa application can be denied for several reasons, including your ineligibility as an applicant or errors. If the USCIS denied your EB-2 visa application, the denial letter sent to you will have stated the reason. 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, I-140, National Interest Waiver (NIW), and Adjustment of Status are different stages in the 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 PERM ensures no qualified U.S. workers are available for the position that the applicant would displace.

perm denial reason

It also protects the applicant’s interest by ensuring the employer pays the prevailing wage for that position. DO must grant you the PERM labor certification application before you can continue with other EB-2 application processes. The only exception to this is if you qualify for an NIW.

Recap of Common Denial Reasons

Insufficient recruitment efforts

DOL requires employers to conduct recruitment efforts to demonstrate that no qualified U.S. workers are available for the job. DOL may deny the labor certification if the recruitment efforts are insufficient or do not meet the regulatory requirements.

Inadequate job description or requirements

The job description and requirements the employer provides must accurately reflect the position’s duties and the qualifications needed. The labor certification may be denied if the job description is unclear or the requirements are not reasonable or related to the position.

Failure to demonstrate a bona fide job opportunity

If the job opportunity is not genuine, or there is evidence of misrepresentation or fraud, the labor certification may be denied.

Inconsistencies or errors in the application

Incorrect information, missing documents, or failure to follow proper procedures, can lead to denying the labor certification.

Wage issues

The DOL sets prevailing wage requirements for various occupations and geographic locations. The labor certification may be denied if the employer fails to offer the required prevailing wage or does not properly document the wage determination process.

Inadequate documentation

The employer is responsible for providing supporting documents to establish the job requirements, recruitment efforts, and other necessary information. If the documentation provided is insufficient, incomplete, or does not meet the DOL’s standards, the labor certification may be denied.

Failure to respond to audit or request for additional information

The labor certification may be denied if the employer doesn’t respond to an audit or doesn’t provide information within the specified timeframe.

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 instead of needing an employer to act as the case petitioner and then having them obtain an LCA before filing the I-140 on your behalf. There is a three-prong test to prove your admission will be in the national interest of the U.S.. It involves:

  1. Demonstrating that the proposed endeavor has substantial merit and national importance
  2. The applicant is “well positioned to advance the endeavor”
  3. It is a benefit to the U.S. to waive the job offer requirements and labor certification

Check out this guide on How to Change Jobs After NIW Approval.

Common NIW Denial Reasons

The National Interest Waiver (NIW) is a special feature of the EB-2 visa application that allows applicants to circumvent the PERM Labor Certification requirement and avoid having to have a sponsoring employer. You must prove that you possess exceptional field ability and must meet the other eligibility criteria. You must also demonstrate that the United States will greatly benefit if USCIS waives the labor certification requirement. With your NIW, you can file your labor certification and self-petition for your EB-2 visa without a sponsoring employer.

While the points below are not a comprehensive list of all the NIW denial reasons, they are good to remember for your case.

Failure to demonstrate national importance

The applicant must prove that their work is of substantial intrinsic merit and has a national impact or significance. If the evidence presented does not convincingly establish the national importance of the applicant’s work, the NIW may be denied.

Inadequate evidence of exceptional ability

To qualify for an NIW, applicants must demonstrate exceptional ability in their field. If the evidence provided does not sufficiently establish exceptional ability, the NIW may be denied.

Doesn’t show substantial benefit to the United States

Applicants must demonstrate that their work will substantially benefit the United States by promoting economic growth, improving healthcare, advancing scientific research, or addressing national security interests. If the evidence provided fails to establish a substantial benefit to the country, the NIW may be denied.

Insufficient documentation or support letters

The applicant is responsible for providing comprehensive documentation and support letters from experts in their field who can attest to the applicant’s qualifications and the national importance of their work. If the documentation or support letters are lacking or do not meet the required standards, the NIW may be denied. Discuss this more in-depth with your immigration attorney to strengthen your support letters.

Inconsistencies or errors in the application

Mistakes or inconsistencies in the application, such as inaccurate information, missing documents, or failure to follow the proper filing procedures, can lead to a denial of the NIW.

Failure to meet the legal requirements or submit the required documents

USCIS has specific requirements for NIW applications, including submitting the required forms and supporting documents. If the applicant fails to meet these requirements or neglects to submit essential documents, the NIW may be denied.

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 USCIS will approve your EB-2 NIW. 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. If USCIS denies the EB-2 NIW, then  USCIS till terminate your work authorization, and you’ll get a letter from USCIS stating the reason for 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 with a degree and many years of work experience. These alone are not sufficient. You still need to pass the three-prong test mentioned above.

Wondering about EB-1 Green Card vs NIW – check out this guide!

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 job offer’s information, this might lead to denial.

Failure to Detail the Beneficiary’s Work Experience

In the ETA 9809 form,  you must include the EB-2 visa beneficiary’s skills, work experience, and other information showing your eligibility for the position. 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. Your employer must reply to the questionnaire 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 must advertise the position in major publications. They must strictly follow the advertisement has guidelines. One of the requirements is that the employer publishes the ads in a major newspaper on two consecutive Sundays. The PERM application can be denied if a petitioner fails to comply with those instructions or any others.

EB-2 Form I-140 Denial

Just like most other employment-based green card applications,  an employer will sponsor your EB-2 visa. Your prospective employer must file the I-140, Immigrant Petition for Alien Worker, on your behalf. They must submit the form with the correct information and well-organized documentation showing that both the petitioner (the employer) and you, the beneficiary, meet the EB-2’s eligibility requirement. 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

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 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 the 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 a 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 must 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 demonstrate the ability to pay the applicant’s wage due for the advertised position. 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 the employer must submit to show this ability.

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 is used to establish the officer based their decision on an incorrect application of the law. You must submit your motion to reconsider 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.

EB2 visa denial options

Appeal the Decision

You can also appeal the decision if you feel it was wrongfully made. Your appeal will be reviewed by the USCIS office issuing the denial. The office will determine whether to make a favorable decision and grant your request or uphold the denial. If the office does not reverse the decision, it will forward your appeal to the Administrative Appeals Office (AAO) for review. You may have your case resolved at the USCIS office’s initial review or the appellate review by the AAO.

Explore Other Visa Types

You may want to try other visas if you have tried the above avenues and the denial is not overturned. Though not ideal, it may be the only way to obtain your green card. If you haven’t committed any crime or contracted any infectious disease that can make you inadmissible, you can explore the EB-3 or a family-based green card.

EB-2 Green Card Overview

The EB-2 visa, or EB-2 green card, is an employment-based visa for applicants with exceptional ability, skills, and professional background. USCIS annually issues about 40,000 EB-2 green cards to eligible applicants in different professions. You may qualify for an EB-2 visa if you meet the eligibility criteria.

EB-2 Eligibility Criteria

For an EB-2 visa, you need an advanced degree or its equivalent or prove you possess exceptional ability in your field.

Advanced Degree

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 have at least five years of work experience in the field.

Exceptional Ability

To qualify under this second criterion, you must demonstrate that you have extraordinary ability in science, business, or the arts. Your expertise in these areas must exceed what is ordinarily in your field.

How VisaNation Law Group’s Immigration Attorneys Can Help

Over the past several years, the denial rate of green card applications has increased. A top reason is many applicants would rather go through the visa process alone instead of hiring professionals from the beginning. No matter how qualified or exceptional you may be, USCIS will deny your EB-2 visa if your application doesn’t meet the standard. 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 petitions for you. Also, they can help you appeal the decision if your application had already been denied. To get in contact with VisaNation Law Group’s expert EB-2 lawyers today, fill out this form.