EB-2 or EB-3 - Which Fits the Worker Better?

Strategic considerations in choosing whether to apply in the second or third employment visa preference category.

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Employers wishing to sponsor a foreign national for a permanent resident visa (“green card”) sometimes have a choice of employment-preference classifications when filing the Form I-140 (“Immigrant Petition for Alien Worker”). Every worker, no matter how skilled or unskilled, is potentially classifiable as “EB-3” or employment third preference. The choice comes into play when the worker is also potentially classifiable as “EB-2” or employment second preference, because he or she has an advanced degree or a high degree of expertise.

The employer will need to take two things into consideration when making the choice: how easy it will be to meet the higher standard for EB-2 classification, and how much longer the employee will have to wait to get the visa if classified as EB-3 rather than EB-2.

Comparing EB-2 and EB-3 Visa Ability

The main reason foreign national workers and their employers would prefer EB-2 classification over EB-3 classification is that they may be able obtain an EB-2 visa much more quickly. In recent years, the EB-3 category has been “backlogged,” because more people have been classified as EB-3 than the number of EB-3 visas actually available. As as result, workers with approved I-140 petitions in the EB-3 category have had to wait many years to get their green cards.

In contrast, because fewer people qualify for the EB-2 category, there has not been a visa backlog for that category recently, except for workers from China and India. For workers from these countries, the difference between wait times for EB-2 and EB-3 visas may not be large, and the wait for an EB-2 visa may even be longer! You can check the wait times for the various visa categories in the Department of State’s Visa Bulletin, which is updated monthly and is available at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Can You Meet the Higher Standard for EB-2?

So, if the wait time for an EB-2 visa is so much shorter than that for an EB-3 visa, why would an employer want to file the I-140 petition in the EB-3 category instead? Simply put, it is more difficult to get the EB-2. (For a review of the criteria for classification in each category, see “EB-2 Visa for Advanced Degree Professionals: Who Qualifies?,” “EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?,” and “EB-3 Visa for Professional, Skilled, and Unskilled Workers.”)

For example, if EB-2 classification is sought on the basis of a job requiring an “advanced degree,” the employer will have to prove that the person hired for the job really must have that level of education in order to perform it. There could also be an issue with regard to whether the foreign national’s degree, if earned overseas, is the equivalent of a U.S. “advanced” degree. If EB-2 classification is sought on the basis of a job requiring a baccalaureate degree plus five years of progressive experience in the field, proof that the foreign national qualifies is easier, but in some instances there could be a question about whether the experience is truly in the “same field.” If EB-2 classification is sought on the basis of a job requiring “exceptional ability,” the burden of proving that the foreign national has the needed qualifications becomes much more onerous, and approval is subject to a USCIS examiner’s evaluation of the quality of proof submitted.

However, keep in mind that both EB-2 and EB-3 petitions require “labor certification,” so the choice between EB-2 and EB-3 is not just a matter of whether the foreign national employee has the qualifications for EB-2. To obtain labor certification, the employer must describe an actual job. If the job as advertised can be performed by someone with qualifications similar to those required of an EB-3 worker, it is bound to attract more qualified U.S. workers than a job requiring EB-2 qualifications. In this sense, an employer would prefer to narrow the foreign national’s “competition” by setting the job requirements and qualifications at the EB-2 level, if the employer is confident the foreign national qualifies.

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