Every year, up to 140,000 green cards are issued to applicants for work, not on the basis of family ties or humanitarian reasons. To become a Lawful Permanent Resident based on employment, it's crucial to understand which employment-based visa category is appropriate for you and how to apply.

Employment-Based Visa Categories

U.S. immigration law divides employment-based visas into five “preference” categories:

1. Priority Workers (EB-1)
2. Professionals Holding Advanced Degrees and Persons of Exceptional Ability (EB-2)
3. Professionals and Other Workers (EB-3)
4. Certain Special Immigrants (EB-4)
5. Employment Creation/Investors (EB-5)

The majority of visa applicants are eligible under the EB-2 and EB-3 visa categories, which are the same two categories that normally require labor certification.

What is the EB-2 Visa Category?

The EB-2 visa category is available to potential immigrants who have:

• An advanced degree: Those who have an offered job that requires a master's or doctoral degree (or foreign equivalent), or a bachelor's degree and five years of progressive experience in a specialized field.
• Exceptional ability: for an applicant who can demonstrate a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business (meeting at least three criteria according to USCIS).

What is the EB-3 Visa Category?

The EB-3 visa category is available to:

• Skilled workers: Those who have an offered job that requires a minimum of two years of training or work experience.
• Professionals: Those who have an offered job that requires at least a bachelor's degree, as well as work experience under five years.
• Unskilled workers: Those who have an offered job that requires less than two years of training or experience but are not temporary or seasonal.

Comparing EB-2 and EB-3 Categories

In most cases, both EB-2 and EB-3 visa categories:

• Require the sponsoring employer to offer a specific job and get a labor certification application approved by the Department of Labor.
• Offer the opportunity for the sponsored worker’s spouse and children to get their own green cards.

Determining the Right Visa Category for You

An experienced immigration attorney can help you and your employer understand the process, the documentary requirements, and which visa might be best for your unique situation. Ultimately, the labor certification application is the employer’s filing, based on their offered job, and the choice of whether to pursue EB-2 or EB-3 is up to the employer.

Even if you have a master’s degree (or a bachelor’s degree and at least five years of work experience), your offered job may not require these credentials. Your employer may be willing and able to offer you a job that requires EB-2 level credentials, but it may not. If your offered job is an EB-3 level job, it will still serve to lock in your priority date, and you can keep that priority date if your employer later files a new labor certification and EB-2 I-140 petition on your behalf.

A sponsoring employer must be consistent with its own hiring norms so that its labor certification application can withstand the scrutiny of an audit. It is also an important factor to many employers that a job with higher requirements may get a higher Prevailing Wage Determination. If the wage is out of reach for your employer, it will not be able to use the Prevailing Wage Determination to file a labor certification application for you

While having an EB-3 I-140 petition may make your green card process take longer than an EB-2 I-140 petition because of a longer backlog, either one will put you much closer to a green card than not having one. Either one will enable your H-4 spouse to get work authorization.

Applying for Employment-Based Visas

The process is the same for both EB-2 and EB-3 categories, when based on labor certification.

1. Employer submits ETA Form 9089 labor certification application to the Department of Labor.
2. Employer submits Form I-140 immigrant petition to USCIS.
3. If already lawfully present in the U.S. in a qualifying nonimmigrant status such as H-1B, the applicant files Form I-485 application for Adjustment of Status.

Together with your employer, consult with an experienced business immigration attorney to decide which green card path is best for you and your company.

Frequently Asked Questions

1. What is the difference between an EB-2 and EB-3 visas?

For labor certification-based cases, the difference between EB-2 and EB-3 hinges entirely on the level of education and experience required for the offered job. An EB-2 I-140 petition is based on an offered job that requires a master's or doctoral degree (or foreign equivalent), or a bachelor's degree and five years of progressive experience in a specialized field, and EB-3 petition is based on an offered job with requirements below a bachelor’s degree and five years of experience.

2. Can I switch from an EB-3 visa to an EB-2 visa?

Yes, you can switch from an EB-3 visa to an EB-2 visa if you meet the eligibility requirements for the EB-2 category. Your employer must file a new labor certification application and a new I-140 petition on your behalf based on an offered job that requires a master's or higher degree (or foreign equivalent), or a bachelor's degree and five years of progressive experience in a specialized field

3. What are the processing times for EB-2 and EB-3 visas?

Processing times for labor certification applications and I-140 petitions do not vary between EB-2 and EB-3. The difference in how long it takes to get a green card depends on immigrant visa availability, which is based on preference category and country of birth. The exact timing of your green card is impossible to know because it depends on demand across all the immigrant visa categories, as well as government processing speed. Some people will wait many years between getting their I-140 petition approved and finally getting a green card, especially if they were born in India or China. It's essential to check the visa bulletin regularly to stay informed about your priority date and how much longer it may take to get your green card.

4. Can my family members join me in the U.S. on an EB-2 or EB-3 visa?

Yes, your spouse and unmarried children under 21 years of age can apply for their own green cards along with yours, whenever you become eligible to apply for your immigrant visa or file your I-485 adjustment of status application.

5. Do I need a job offer to apply for an EB-2 or EB-3 visa?

For every case based on labor certification, you will need a job offer from a U.S. employer to apply for an EB-2 or EB-3 visa. The offer must define the exact job, including the position requirements, the duties, the location, and many other details. The employer will need to get a labor certification application approved by the Department of Labor and file an I-140 immigrant petition on your behalf.

Conclusion

The EB-2 and EB-3 immigrant visas are solid choices for professionals seeking permanent residency in the U.S. based on their willingness to take a hard-to-fill job. Understanding the requirements and differences between these categories can help you determine the best path forward for your career and immigration goals.