EB-2 vs. EB-3 – Which one is Right for Me?

 
Each year the immigration regulations provide a minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. While some categories have a backlog of several years, others have a much shorter wait time. The most common are the EB-2 and the EB-3 categories. This article will cover general questions regarding the requirements, differences and advantages between these two classifications. The “other worker” category will be discussed in a future article.

Client: I work for a CPA firm as an H-1B accountant and my company wants to sponsor me for permanent resident status. What is the fastest way to get a green card?


Attorney: Generally, the EB-2 has a much shorter wait time because the demand is lower. However, waiting times can vary depending on the country where the employee was born. As of February 2010, the State Department’s Visa Bulletin indicates there is no waiting to file an Adjustment of Status (AOS) application under the EB-2 category in the Philippines, while the EB-3 category is backlogged to September 2002. This means that applicants who are under the EB-3 category must wait many years for a priority date to become current before filing for AOS, while EB-2 applicants can file for AOS when a labor certification (PERM) is approved.

Client: How do I know whether I am qualified for the EB-2 or EB-3 classification?


Attorney: The Second Employment-Based preference category (EB-2) includes (1) professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years of progressive experience in the profession; (2) and persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

The Third Employment-Based preference category (EB-3) covers skilled workers, professionals holding a baccalaureate degree and other workers. Positions that require a Bachelor’s degree or at least two years of training or work experience are usually classified as EB-3 positions.

Client: I have a Master’s degree. Will I be classified under the EB-2 category?


Attorney: Not necessarily. The EB-2 and EB-3 categories are determined by the employer’s minimum requirements for the particular position, not just the worker’s credentials. For example, if the employer requires a Bachelor’s degree plus three years of experience in order to be qualified for a position, then the position is still under the EB-3 category even if the employee has a Master’s degree. Also, determining the proper category for an offered job may be influenced by several Department of Labor publications that indicate job requirements in the United States.

Client: How can exceptional ability be demonstrated?


Attorney: An EB-2 petition for an alien of exceptional ability in the sciences, arts, or business, must be accompanied by at least three of the following: (1) educational degree relating to area of exceptional ability; (2) letters from current or former employers showing at least 10 years experience; (3) license to practice in the profession, if required; (4) evidence that the individual has commanded a salary or remuneration demonstrating exceptional ability; (5) membership in professional associations; (6) recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization. In situations where these standards do not apply, other comparable evidence may be acceptable.

Client: Why does it matter whether I am classified as EB-2 or EB-3?


Attorney: The law provides for a limited number of people to immigrate to the U.S. each year. The quotas depend on the preference category and the country of beneficiary’s birth. The regulations do not allow more than a certain number of EB-2 and EB-3 individuals to immigrate each year, and each country is limited to a percentage of the total number for each category. For the Philippines, EB-3 applicants must wait many years for their priority dates to become current before filing for AOS. However, EB-2 applicants do not have to wait to file an AOS application.

Client: Do I need to have a job offer to apply for EB-2 or EB-3 Employment based immigrant visas?


Attorney: Foreign nationals applying under EB-2 or EB-3 must have a permanent, full time job offer from a qualified petitioner. Your employer is required to complete the labor certification (PERM) process on your behalf. However, if you can demonstrate that you qualify for a National Interest waiver then the labor certification may be waived.

Due to lengthy backlogs in the EB-3 category, many workers are now anxious to have their employers file an EB-2 petition on their behalf. However, it is important to carefully analyze the job offer before starting the process. Petitioners and foreign nationals who want to know whether they are qualified for procedures discussed in this article should consult an experienced and knowledgeable U.S. immigration attorney.