The differences between EB-2 and EB-3 in an effort to alert aliens and employers, and help both seek EB-2.

 

For aliens intending to permanently move to the U.S. through employment the typical route is through seeking an employment-based immigration second preference category (“EB-2”) or third preference category (“EB-3”). Ideally EB-2 is preferred as obtaining permanent residency is faster through this route and aliens from certain countries need not wait to obtain their permanent residency as those who would be current on the date of filing Form I-140 Immigrant Petition for Alien Worker may concurrently file Form I-485 Application to Register Permanent Residence or Adjust Status (concurrent filing is also applicable for EB-3 applicants although this category has typically not been “current”).

EB-3 Category

EB-3 is designated for skilled and unskilled workers (the latter is typically referred to as “other workers”), and professionals. It should be noted that all three (3) classifications require 1. an offer of full-time employment (the position may not be temporary or seasonal although full-time), 2. evidence that there are no qualified workers in the U.S. to perform the work (i.e., an approved labor certification), and 3. an employer willing to petition on the alien’s behalf, which includes paying for this entire process up to and including Form I-140, and eventually paying the offered wage. In addition to the previous requirements, a skilled worker classification also requires the alien to have at least two (2) years of job experience or training, the employer must require the experience or training, and the experience or training required must be typical of the position. The latter means it must be the industry standard or practice of the position to require the experience or training.

Because this classification does not require higher education (i.e., a college/university degree), these aliens have little they can do to move up to EB-2. Their only options for EB-2 are to be classified as having exceptional ability or being part of the National Interest Waiver (both are discussed below). Unlike the skilled worker classification, the unskilled worker’s position requires less than 2 years of experience or training. Although an unskilled worker is an EB-3, these aliens have different processing times. As of August 2013 the unskilled workers’ processing times mirror those of other EB-3 categories except for China–mainland born who are almost five (5) years behind. Similar to the skilled worker classification, because this classification does not require higher education their only options for moving up to EB-2 is where the alien has exceptional ability or is part of the National Interest Waiver. To be considered a professional for EB-3 the alien must have and the position must normally require for entry into the occupation a U.S. bachelor’s degree or a foreign equivalent. Where the alien has a foreign degree, a professional outside company must provide an academic evaluation to prove the alien has the equivalent of a U.S. bachelor’s degree.

If the alien has a foreign degree and a U.S. master’s degree, an academic evaluation is not necessary where the master’s degree is in the same major field of study as required by the position. Furthermore, a combination of education and work experience may not be substituted for the bachelor’s degree like it can be for EB-2 and H-1B. This means the alien must possess an actual bachelor’s degree (whether U.S. or a foreign equivalent) and work experience may not be counted to equal a bachelor’s degree. These aliens are more likely to be able to upgrade to an EB-2 as an advanced degree classification, which will be discussed below.

EB-2 Category

EB-2 is designated for those aliens who have an exceptional ability in the sciences, arts, or business, fall under the national interest waiver, or have an advanced degree or its equivalent. Similar to EB-3, 1.full-time employment is required, 2. proof that there are no qualified U.S. workers for the position, and 3. an employer willing to petition on the alien’s behalf. The latter two (2) requirements are not needed where the alien is eligible for the National Interest Waiver. In addition to the above requirements, aliens classified as having exceptional ability must show they have “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” (includes athletes), which may be proven through at least three (3) of the following: Official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to their area of exceptional ability; Letters documenting at least ten (10) years of full-time experience in the occupation; A license to practice their profession or certification for their profession or occupation; Evidence that they have commanded a salary or other remuneration for services that demonstrates their exceptional ability; Membership in a professional association(s); Recognition for their achievements and significant contributions to their industry or field by their peers, government entities, professional or business organizations; or Other comparable evidence of eligibility is also acceptable. Additionally some exceptional ability aliens may bypass the labor certification process where they fall under Schedule A Group I or Group II. These include physical therapists, professional nurses, and aliens with exceptional ability in the arts, sciences, and performing arts.

Each has their own list of evidence which must be provided and can be found at 20 C.F.R. ? 656.5. An advanced degree professional are those whose position requires an academic or professional degree beyond a baccalaureate. Similar to EB-3, the position must regularly require the advanced as it is not enough for the alien to possess it and the employer to require it. Additionally, the advanced degree need not be from a U.S. institution if it can be shown (i.e. through an academic evaluation) that the foreign degree is equivalent. An advanced degree may encompass a baccalaureate degree where five (5) years of progressive work experience is required.

This means a position may be classified as an EB-2 advanced degree if the position requires a baccalaureate degree plus five (5) years of progressive experience. Although there is no law defining “progressive experience”, INS has stated it “is demonstrated by advancing levels of responsibility and knowledge in the specialty.” INS Memorandum, “Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants” (Mar. 20, 2000). This means the alien’s work responsibilities (i.e., the experience) must have progressed for five (5) years in the field. To be eligible for the national interest waiver the alien must hold an advanced degree or have an exceptional ability (both described above), and due to this the U.S. would greatly benefit having this alien in the labor force.

To show this the following must be proved: The employment is in an “area of substantial intrinsic merit”; The benefit of having the alien is “national in scope”; and The national benefit outweighs the benefit of the labor certification process (a local labor shortage is not sufficient). Matter of New York State Department of Transportation, Int. Dec. 3363 (Comm’r 1998). Once the employer and alien select the category most appropriate, they must begin the labor certification process (where applicable). If the alien’s priority date (the date the labor certification is accepted for filing or the date the I-140 is filed for those who do not need a labor certification) is current at the time of filing Form I-140, Form I-485 may be filed concurrently. Additionally, premium processing is available for all EB-3s and EB-2s with the exception of those seeking the national interest waiver. It is imperative to pay careful attention to the requirements of each category and to pay extra attention where an alien and the position may qualify for EB-2 instead of EB-3 as the road to a green card is faster. As always, it is highly recommended you seek the assistance of an immigration attorney as they can better guide you towards the alien’s green cards.