American Dreaming: Choosing the Right Employment-Based Green Card

Business.com / HR Solutions / Last Modified: February 22, 2017

For professionals seeking to live in the U.S. the EB2 and EB3 visas are very popular choices. Learn which green card option suits you best

For entrepreneurs and business professionals seeking life in the United States, a green card is one effective route. Likewise, business owners often want to recruit foreign professionals from overseas to be involved with their company's operations.

With so many subcategories, it can often be difficult to determine which type of green card is the best option and how to go about obtaining it. The second and third preference categories, commonly known as EB2 and EB3, are popular visa options for highly skilled professionals. It's important to know the differences between each one and the eligibility requirements outlined by the government.

There are very clear differences between EB2 and EB3 visa options including the processing time, eligibility criteria and overall process. Due to the significant disparities between both of these categories it’s important to have a solid understanding of each one before recruiting overseas workers.

Related Article: Contractor or Employee? Important Legal Rulings Employers Should Know

Background: Employment Second and Third Preference

An employer or business owner can sponsor an employee's green card for them to work in the U.S. and receive other permanent resident benefits. The EB2 and EB3 category both fall under this employment-based category but they each have unique requirments.  

The employment second preference (EB2) category is dedicated for individuals in two main subgroups--those holding advanced degrees beyond a baccalaureate degree (plus five years prior experience) or those demonstrating exceptional ability in areas like the arts, sciences or business. 

Note: In order to apply for this category you must have a labor certification approved by the Department of Labor (DOL), Schedule A designation or qualify under the Labor Market Information Pilot Program.

Individuals looking to acquire an EB2 green card under the exceptional ability or NIW category must have at least three of the following:

  • Academic record of a degree within the field of exceptional ability
  • Proof of work experience in the past 10 years
  • Professional certification or license
  • Membership of a related professional association 
  • Recognition by peers or governmental organizations

The employment third preference (EB3) category is for those who are skilled or professional workers, capable of performing a job requiring at minimum two years of experience/training. For example, an electrician, plumber or other skilled professional who meets the qualifications could receive this type of visa. The EB3 category is not for employees who perform seasonal or temporary work. Also, professionals with a baccalaureate degree are included in the subgroup.

Related Article: Made in the U.S.A: Is Outsourcing Dead?

Differences Between EB2 and EB3 Visas

There are two methods for applying for the second preference. One way is through the PERM labor certification process and the other is the National Interest Waiver (NIW). Despite which method the applicant chooses, they must still be able to demonstrate exceptional ability.

Note: the criteria “exceptional” and “extraordinary” (for EB1) are not the same thing. One big difference is that the NIW does not require a labor certification.  

Advantage of EB2 Over EB3

There are a few benefits of an EB2 instead of an EB3. First, filing in the EB2 category is years faster than the EB3 category. There is a much shorter waiting period compared to the EB3. The priority dates for third preference employment visas not not usually current which means the beneficiary can’t file an adjustment of status I-485 concurrently with the petition for employment visa I-140.

Disadvantage of EB2 Over EB3

Generally, the eligibility requirements for EB2 are more strict than EB3 but with that said, there is a longer backlog for the “other workers” category in EB3. So in many ways, it’s a trade off. An experienced EB2 visa lawyer can explain more relevant disadvantages in relation to your case.

Processing Time for EB2 and EB3

In some scenarios an EB3 applicant can qualify for a change to EB2 assuming they have obtained the necessary job experience and other filing requirements within that time period. This “upgrade” as some might call it doesn’t actually change the previous labor certification or I-140. If you choose this route, you’ll need to file a new labor certificate and corresponding I-140 for the EB2 category. You may, however, see an expedited process when it come to filing the adjustment of status to permanent residence via the EB2 path.

How Does the Priority Date Factor In?

The priority date for employment based applicants is when the petition was filed with USCIS or the date when the LCA was accepted for processing. This determines when the applicant can file for an adjustment of status or finish the consular process to become a permanent resident. An individual may apply for an adjustment or begin the process if the priority date is before the cut-off date. These are considered current priority dates.

Difference Between EB2 and EB3 Visa Summary

There are very distinct differences between EB2 and EB3 visas. In particular, the requirements necessary to be eligible for each one vary as well as the processing timeline and approval rates. Reviewing their advantages and disadvantages is imperative before choosing a course of action.

To learn which option may be more suitable for your current situation it’s best to consult an employment green card attorney.

An immigration attorney with extensive experience handling employment based immigration cases can help you file an EB-1, EB-2, EB-3, EB-4 or EB-5. Moreover, an experienced EB2 visa attorney can help identify the documentation necessary to get your case the best chance of approval and in accordance with the proper deadlines.

 

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