COVID-19 Update: SDP&A cares about our clients, community and the public during this unprecedented time of the COVID-19 pandemic. Read MoreX
We are offering complimentary consultations with our experienced attorneys via phone, Skype, FaceTime and Zoom to anyone – individuals, businesses and organizations – with a situation and/or questions related to immigration and nationality law. We can advise or offer second opinions on family-based and employment based immigration options, employer compliance, maintenance of non-immigrant status and employment authorization, political asylum, removal defense, remedies through federal court litigation or other U.S. immigration matters. Please contact us 24/7 at (312) 444-1940 or firstname.lastname@example.org.
Each year, the U.S. allows roughly 700,000 immigrants to enter the country. Out of those, 140,000 are given an opportunity to establish residence through an employment-based visa. There are five different levels of preference for employment-based visas that grant permanent residency, and each depends on an individual’s education, work experience, and level of expertise in a given field.
The employment-based second preference visa applies to three subcategories of foreign workers:
Each of these classifications have slightly different requirements.
The advanced degree subcategory of the EB-2 requires a foreign worker to possess a master’s or doctoral degree from the U.S. or a foreign equivalent that holds the same value. It also requires the employer to prove that an advanced degree is necessary to work in the position being offered or filled.
This classification can also be earned with a U.S. bachelor’s degree or foreign equivalent and five additional years of progressive experience after graduation. Progressive experience is defined as work in an environment that requires the individual to develop new skills and knowledge over time.
The EB-2 visa also covers those who are qualified as having exceptional ability or knowledge in the sciences, arts, or business, which can benefit the U.S. economically, culturally, or educationally. This classification still requires a sponsoring employer to petition and complete labor certifications.
To qualify as having exceptional ability, an individual must be able to submit at least three of the following:
Other comparable evidence of professional success and expertise are also acceptable.
The last section of the EB-2 is the only subcategory between the EB-2 and EB-3 that does not require a labor certification or job offer. This portion covers individuals who are admitted to the U.S. in the best interest of the nation. Those seeking a national interest waiver, or NIW, can self-petition without the help of a sponsoring employer. NIW applicants are typically individuals with exceptional ability who cannot find a sponsoring employer but believe their employment would greatly benefit the country.
The employment-based third preference visa also has three subcategories:
These categories are divided into EB-3A, EB-3B, and EB-3C, respectively. The EB-3 visa is less stringent on its requirements when compared to the EB-2 visa.
Classification EB-3A is reserved specifically for individuals who have at least two years of full-time training or work experience in a specific field. The beneficiary must be able to prove this when applying for a visa. There must also be a permanent, full-time job offer on the table for the individual at the time they are admitted to the nation.
The employer has to earn labor certification for the petitioner by proving that there are no other workers available in the U.S. to perform the job in speculation. This involves advertising the position on different bulletins and searching for a specified amount of time before the organization can hire from another country.
The EB-3B is targeted towards working professionals in fields where a bachelor’s degree is the common requirement for entry into an occupation. The individual must be able to demonstrate they have a bachelor’s degree or foreign equivalent and meet any other requirements on the labor certification. It is important to note that experience cannot be substituted for a degree in this case.
Similar to the EB-3A, the employer must prove that there are no available workers currently available in the U.S. before hiring professionals from another country.
The last subcategory of EB-3 is for unskilled workers, or other workers. This allows individuals to be admitted to the U.S. if they can demonstrate the ability to perform full-time unskilled labor. This requires less than two years of training or experience but still requires labor certification.
The employer must once again prove that there are no available workers in the U.S. to fulfill the position they are searching to fill.
The EB-2 and EB-3 visas both allow workers to live and work in the U.S. permanently. With the exception of the NIW subcategory of the EB-2, each individual who applies for one of these visas is required to earn labor certification.
Although these two visas are fairly similar, they do differ in their requirements and timelines when applying for legal permanent residency.
When comparing an EB-2 to an EB-3, one of the most important differences has to do with their priority dates. A priority date refers to a person’s position in the queue for having their application reviewed. Different countries have different priority dates based on how many workers immigrate from that specific region.
Once an individual’s assigned priority date is reached, they can move forward in applying for legal permanent residency with a Form I-485, application to register permanent residence. The priority date for each respective employment-based visa can be checked on the Visa Bulletin, a chart released by the government roughly once a month. When there are more applicants in a category than available visas, the priority date falls behind the current date, meaning individuals will have to wait longer before moving forward with their applications.
Because the EB-3 visa has less stringent requirements and is more accessible, it has a much higher backlog. Aside from countries such as India and China from which the U.S. admits a large number of applicants, the priority dates for an EB-2 are current — meaning an individual can move forward with their application as soon as they petition. For this reason, many workers who file for an EB-3 will attempt to transition to an EB-2 reduce their wait time.
If the backlog for an EB-3 visa requires you to wait longer than it would to earn the proper qualifications for an EB-2 visa, it may be beneficial to port your EB-3 to an EB-2. The necessary qualifications focus more on an applicant’s job than anything else. While it is required that an individual gain the necessary education or experience to port to an EB-2, unless they receive a large promotion or begin working for a new employer, they will likely be denied the transition. The USCIS views each application on a case-by-case basis.
If you meet the new qualifications and you already have an approved I-140 petition for an EB-3 (meaning you’re waiting for a current priority date), your employer will essentially have to start the process from the beginning. The employer must obtain a second PERM labor certification on your behalf and file a new I-140 with request to recapture the EB-3 priority date. If done correctly, this will keep the same individual priority date for the EB-2 petition. Typically, it takes nine months to two years to transfer from an EB-3 to EB-2 status.
There are also cases in which the reverse is beneficial — specifically for Indian applicants. A change in immigration policy as of October 2020 has made the EB-3 wait time shorter than that of the EB-2.
One more feature that exists for the EB-2 and EB-3 visas is premium processing. Premium processing can be purchased for an additional $1,225 to immigration authorities and will reduce the PERM labor certification processing time to two weeks. This can be beneficial when trying to speed up an individual’s approval.
However, it should be noted that premium processing only speeds up this single process. Individuals must still wait for their priority date before filing for LPR, and purchasing this feature does not increase the chances of being approved. It merely shortens the time for PERM certification.
Applying for green card status and visas is an extremely important but complicated decision. Working with an experienced immigration attorney can relieve some of the burden. The attorneys at Scott D. Pollock and Associates, P.C. can guide you through the process of applying for an EB-2 or EB-3 visa, or porting between the two.
Contact a member of our team today at 312.444.1940View Similar Articles