EB-2 versus EB-3 Visas

July 29, 2021

Every year, approximately 140,000 employment-based (EB) visas are made available to applicants who, under U.S. immigration law, demonstrate the right combination of skills, education, work experience, or eligibility. To obtain permanent residency based on employment skills, it’s crucial to understand which employment-based visa category is right for you and how to apply.

The Immigration Act of 1990 created immigration categories that divide employment-based visas into five preferences. These preferences were crafted as a means of increasing the number of immigrants to the United States who have “exceptional ability” or otherwise offer skilled or permanent labor contributions to the American workforce.

Continue reading to learn if you might be eligible for an EB-2 or EB-3 immigrant visa category as your path to permanent residency (i.e., a green card) based on your priority status.

What are the employment-based visa categories?

The five employment-based visas offered by the U.S. are organized according to what are called preference levels:

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

EB-2 and EB-3 visa categories are the preference levels under which the majority of visa applicants are likely to find themselves eligible.

What is the EB-2 visa category?

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The second preference level EB-2 visa category is available to potential immigrants who have

An advanced degree. This qualification is reflected in the applicant’s holding of a master’s or doctorate degree or its foreign equivalent: a bachelor’s degree and five years of experience in the field.
An exceptional ability. Workers may qualify for this sub-category with a specialized degree and significant, demonstrated competence in one of the following areas: art, business, or science.
A national interest waiver. When an applicant believes both that they are significantly qualified and that it is in the best interest of the U.S. to waive the labor certification requirement, a national interest waiver may be requested.

Proving eligibility for the EB-2 exceptional ability category requires you to prove that you meet at least three of the below criteria, according to the United States Citizen and Immigration Services (USCIS):

Official academic record of degree, diploma, certificate, or similar award relating to your area of exceptional ability
Letters documenting at least 10 years of full-time experience in your occupation
A license or certification to practice your profession or occupation
Evidence that you have earned a salary or other remuneration for services that demonstrate your exceptional ability
Membership in a professional association related to your exceptional ability
Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, or professional or business organizations

Other comparable evidence may be allowed, and an experienced business immigration attorney may be able to provide information about what kinds of documentation would be accepted.

With the exception of the national interest waiver, you must have an employer sponsor who has obtained labor certification approval in order to be approved for the EB-2 visa category. Qualifying for the national interest waiver requires you to meet the advanced degree or exceptional ability criteria as well as demonstrate all of the following:

Your reason for applying has merit and national importance.
You are well positioned to advance your proposed endeavor.
It would be beneficial to the United States to waive the requirements of a job offer in favor of approving your visa application sooner.

Immigrants to the U.S. who are designated as Professionals Holding Advanced Degrees or Persons of Exceptional Ability receive nearly one-third of the yearly limit of employment-based visas, as well as any unused visas from the first preference category.

What is the EB-3 visa category?

If you do not meet the criteria for the EB-2 visa category, you may still qualify for an employment based visa under the EB-3 program. This visa category is available to

Skilled workers. These workers are qualified to fill jobs that require a minimum of two years of training or work experience that are not temporary or seasonal.
Professionals. These workers are members of professions whose jobs require at least a bachelor’s degree.
Unskilled workers. These workers are capable of filling positions that require less than two years of training or experience but are not temporary or seasonal.

Professionals who are seeking an EB-3 visa category will need to show proof of their bachelor’s degree or foreign equivalent. It’s important to note that simply having the degree is not enough — the position itself you are seeking to fill must also require a bachelor’s degree.

Like EB-2 visas, nearly a third of all employment-visas yearly are filled by EB-3 immigrant workers, along with unused EB-1 and EB-2 applicants.

What are the primary similarities and differences of EB-2 and EB-3 categories?

Both EB-2 and EB-3 visa categories (with the exception of the EB-2 national interest waiver)

Require an employer-submitted petition with labor certification (more about this below)
Offer an opportunity for your family to join you under their own visas

However, complex and sometimes confusing details in U.S. immigration processes can mean significant differences in

Number and type of applicants. While the two visa categories make up the same general percentage of visas received by foreign workers in the U.S., the number and type of applicants can make a difference in your individual process.
Required documentation. As noted above, the various subcategories have different criteria, and proving that you meet the requirements means submitting documentation that is acceptable to USCIS.
PERM processing times. Employers must demonstrate that their labor practices will not negatively affect the opportunities, wages, and working conditions available to U.S. workers. The Department of Labor publicly reports on the current processing time for PERM applications.

How do you determine which visa is right for you?

First and foremost, you need to be sure you can meet the minimum qualifications. It can be expensive and time-consuming to submit your documentation to USCIS only to be denied or flagged for deficiencies. If you are unsure of whether or not your qualifications will hold up against the scrutiny of the Department of Homeland Security’s (DHS) reviewers, an experienced immigration attorney can help you understand the process and qualifications required.

Attorneys who are used to navigating the complex immigration process can also help you determine which visa might be best for your unique situation. Variables that may be important to consider in the application and approval process include

How your priority date is determined, which determines your “place in line” to receive a green card
How many visa applications from in a category have been filed
How large the backlog of visa applicants is in each immigrant category
Your country of origin, which will help you understand which category you fall into and its current backlog

No attorney can guarantee a smooth or quick process when it comes to immigration processes. However, experienced attorneys can provide the information you need to decide which pathway to permanent residency is in your best interest.

What’s the process for applying for employment-based visas?

Once an employer makes the decision to sponsor a foreign national for permanent resident status based on their employment, the process is the same regardless of the EB-2 or EB-3 category, with the exception of the level of documentation and the national interest EB-2 exception.

The employer submits ETA Form 9089 to begin the labor certification process. Once the employer has received Permanent Labor Certification from the U.S. Department of Labor (DOL), then the employer submits the petition for the visa.
The employer submits a Form I-140 to request USCIS to classify you as eligible for an employment-based visa. Employers may choose standard processing, which takes approximately three to 12 months, or request premium processing, which expedites the process to 15 days.
If you are already in the U.S., you would then file Form I-485 for an Adjustment of Status.

While the process of obtaining an employment based permanent resident status is largely in the hands of your future employer, it is important for you to understand the process so you know what to expect. If you have a U.S. employer and are considering your permanent residency options, a consultation with your employer and an experienced business immigration attorney may help you decide which options are best for you and your company.

To learn more about EB-2 versus EB-3 employment-based permanent residence, schedule a consultation with Farmer Law today.

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EB-2 versus EB-3 Visas

What are the employment-based visa categories?

What is the EB-2 visa category?

Follow Us On

Have a Question?

More Information from Farmer Law

Immigration Law

What is the EB-3 visa category?

What are the primary similarities and differences of EB-2 and EB-3 categories?

How do you determine which visa is right for you?

What’s the process for applying for employment-based visas?

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