EB-2 vs. EB-3

The EB-2 is an employment-based second preference visa petition available to foreign nationals who have an advanced degree or equivalent (master degree or higher) or who has exceptional ability in the sciences, arts, or business. In certain cases, a bachelor degree professional with five years of progressively responsible experience in the offered job position may also be deemed to have the equivalent of a master degree in the field.

The advantage of the EB-2 visa category is that it is much faster than the EB-3. But, it is more difficult to meet the requirements of the EB-2 than the requirements of the EB-3.

When the PERM labor certification application is filed, the foreign national receives a priority date. These visa categories have a numerical limit determined by Congress as a quota system that limits the number of visa granted to nationals of certain foreign countries for each fiscal year. When the annual quota is reached, petitioners must wait until the following year for a visa number to become available. This is what causes the waiting list, and the priority date signifies the petitioner’s place in line. For those born in China, India, and the Philippines, visa numbers for the EB-3 category frequently retrogress or become unavailable resulting in waiting periods as high as eight years. The numbers for the EB-2 category in those countries become available much more quickly, as low as around two years. And in most countries the EB-2 category has no waiting time.

The tricky part is that it takes more than just a foreign national with an advanced degree to get the EB-2. The Department of Labor must be convinced that the job offered actually does require an advanced degree. The labor certification will be denied if the DOL thinks that the employer set the requirements too high. For example, an employer cannot require a bachelor degree to fill a cashier position or require an entry-level computer programmer to have a master degree. An employer who files the EB-2 PERM application should be prepared to produce evidence of business necessity along with documents justifying the need to require an employee with an advanced degree or equivalent.

When choosing between these two basic categories, several factors must be taken into account and balanced. It is important to look at an accurate definition of the job position and its requirements, the salary offered, the foreign national’s education and experience, and the education and experience of other people working in the same position.

If you have questions about the EB-2 and the EB-3 visa petitions, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.