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Employment Based Immigration: Focus on EB2 vs. EB3

 

About the Author:  Sarah Pelud is the Lead Immigration Attorney overseeing the Compliance Division of iTech US, Inc., a nationally-renowned IT Consulting Firm with offices in Vermont, Texas, New Jersey, Virginia, Montreal, and Hyderabad (India).  iTech’s Core Values  (Driven, Compassionate, Transparent, Integrity & Agility) are the foundation of its success, with its primary focus of “Peace of Mind through an ethical and transparent employment relationship.”  For more information, visit   I-Tech US

 

Employment Based Immigration: Focus on EB2 vs. EB3

I.  General Overview: EB immigration and the immigrant visa allocation system:

Foreign professional workers in the United States are anxious to start their Green Card process, and understandably so – it is a long and complicated endeavor, with some categories experiencing decade-long backlogs. Many of these individuals are working in the US in H-1B status, which has a 6-year time limit.  So in order to assure one’s continued and uninterrupted presence in the United Sates, the Green Card process must commence within the H-1B 6-year period. In addition, most foreign workers cannot start this process alone. The immigration system requires most employment-based immigrants to have an offer of full-time permanent employment from a US employer, and that employer must agree to follow a very specific process of sponsorship. The entire process demands dedication, attention to detail, and patience from both the US employer-sponsor and the foreign worker.

There are several different categories (with further subcategories) under which US employers can sponsor a H1B (or other nonimmigrant employees). We will focus on the two most-used categories by foreign professional workers: the employment-based second (EB2) and third (EB3) preference categories.

EB2 Category, or Employment-based ‘Exceptional’ ability or ‘Advanced Degree’ Category: Most H1B employees and their employers look to the EB2 category first, as it is the fastest way to obtain Permanent Residence status after EB1 extraordinary ability for most individuals.  To simplify, the minimum requirements under this category are a US Master’s degree or equivalent, or ‘exceptional ability’ (expertise significantly above that ordinarily encountered) in sciences, arts or business. [More on this below].

EB3 Category or Skilled, Professional or Other Worker Category:  Many employers also sponsor H1B employees in the EB3 “Professional” and sometimes “Skilled Worker” category. Qualification as a Professional requires at least a US Bachelor’s degree or equivalent with at least 2 years of training/experience. Qualification as a Skilled Worker requires at least two years of training or experience. This category is also available to ‘other’ unskilled workers, which is not applicable to H1B professionals.

EB2 is usually the more desirable green card category because, in most cases, processing takes less time than EB3. However, it is scrutinized more closely. And its requirements are fairly complex. Simply having a US Master’s degree does not make one qualified for EB2 immigration – the US employer must also require that US Master’s degree (or equivalent) as a minimum requirement to perform the duties of the offered position, and must also be willing and able to pay the higher wages associated with EB2 jobs.

But why is EB2 so much faster than EB3? It comes down to principles of supply and demand. The total wait time for a Green Card depends on the availability of visa numbers in the foreign national’s particular preference category, their priority date (place in line), and the country the visa will be charged to (usually the foreign national’s country of birth).

It’s good to have a basic understanding of how this all works. The United States’ employment-based (EB) preference system was established by IMMACT 90, and distributes 140,000 immigrant visa numbers each fiscal year to five (5) preference categories, namely:  EB1 for priority workers; EB2 for advanced degree professionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas. Further to the worldwide limit, the law imposes additional per-category and per-county limits.

The EB2 and EB3 categories each get 28.6% of the total, or 40,040 visas per category. The per-country limits on the number of visas available per EB category is set at 7% of the total annual limit. This means that in a fiscal year, any single foreign nationality group may receive only 2,803 visas in the EB2 and EB3 categories. The obvious effect of this complicated allocation system is that countries with high populations and immigration, such as India, China, Mexico and the Philippines, are disadvantaged and experience long wait-times.

Since there are generally more jobs that require a Bachelor’s degree [or previous experience] than those that require a Master’s degree or the equivalent, EB3 demand is much higher than the number of available green cards in the EB3 category.  In contrast, the number is about even in the EB2 category for most countries (other than China and India), and there is no wait for visa availability.

Foreign nationals born in countries with backlogged wait-times pay close attention to their EB category and their priority date. The priority date is the date a foreign national expresses, though an official filing of an application or petition, his/her intent to immigrate permanently to the United States. For all EB2 and EB3 cases with labor certification applications, the priority date is the date the Employer files the labor certification with the US Department of Labor (DOL). When a labor certification is not required, the priority date is the date the Employer files the I-140 petition with USCIS. In all cases, the foreign national will ‘lock-in’ his/her priority date only after USCIS approves the Employer’s I-140 petition. The earlier the priority date is, the closer one is to the front of the line for their green card processing.

So how does one go about getting a place in that line? The first step of course is finding a permanent job offer from a willing US employer. [Unless the foreign worker’s presence can be proven to bring about significant benefits to the United States (‘national interest’) or a person has extraordinary ability, a permanent job offer from a US Employer is always required].  Then the permanent job offer must be clearly defined based on the Employer’s actual standards, and the foreign national’s qualifications analyzed under EB2 and EB3 criteria. Both the EB2 and EB3 categories have built-in protections for American labor, so the Employer must demonstrate through mandatory recruitment efforts that there

are no qualified United States workers available to fill the position before filing its labor certification application with DOL. Therefore, for most non-immigrant professionals, the road to a Green Card through employment consists of three phases:

(1) US employer files a labor certification application with the Department of Labor (DOL) which determines the job’s actual minimum requirements and that there are no qualified, able and willing US workers for the job offered to the foreign worker [the filing date of the labor certification becomes the individual’s ‘priority date’ later on after the labor certification and the I-140 approval]

(2) US employer files the offer of permanent employment (I-140) with the United States Citizenship & Immigration Service (USCIS), which confirms that the Employer is offering the job to a foreign person who meets the position’s minimum requirements, that DOL certified there are no qualified and willing US workers for the position, and also that the Employer has sufficient funds to pay the required minimum wages to this foreign person

(3) Foreign person files his/her application to adjust status to permanent residence (USCIS), or applies for an immigrant visa abroad (Department of State/DOS). This final step can be completed only when an individual’s priority date is current in the DOS’ monthly Visa Bulletin.

The labor certification step may be skipped only in limited circumstances for EB-2 qualifying individuals, if their employment can be deemed in the ‘national interest’ of the United States. [More below regarding national interest waiver]. The labor certification step may be expedited (pre-certified) in cases of foreign nationals who are of ‘exceptional ability in the sciences or arts’ or who are professional nurses or physical therapists. [Schedule A Precertification, which is beyond the scope of this article].

II.  EB2: Criteria

One should understand that the selection of the employment preference category is actually done at the time the Employer files the I-140 petition for permanent employment, which is after the Employer receives labor certification from the Department of Labor.  However, the contents of the labor certification application (Employer’s minimum education and experience requirements for the job) will determine whether an Employer could request EB2 or EB3 at the I-140 stage.

A foreign national may be eligible for an employment-based second preference visa if he/she is a member of the professions holding an ‘advanced degree’ or its equivalent, or has ‘exceptional ability’. The EB2 category, therefore, can be broken down to two subcategories:

The first subcategory is for foreign persons qualifying for the offered position with an ‘advanced degree’ or its equivalent, sometimes referred to as EB-2A.

The second subcategory is for foreign nationals with exceptional ability in the sciences, arts or businesses. Exceptional ability means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  If one can also document that their employment in the US would greatly benefit the national interests of the US, a waiver of the job

offer and labor certification application may be accessible. [National Interest Waiver cases are discussed separately below].

Advanced Degree” EB-2A criteria: All EB2-A cases require the US employer sponsor to seek labor certification from the US Department of Labor (DOL).

To qualify under EB2A, one needs an ‘advanced degree’ which is defined to be either a US Master’s degree or higher (or foreign equivalent), or a single-source four-year undergraduate Bachelor’s degree followed by at least five (5) years of progressively responsible work experience. The ‘progressive’ aspect of the experience means that the level of responsibility exerted by the worker, the complexity of the tasks, and the knowledge gained in that position must have increased over the course of five years. Equivalent foreign degrees are acceptable to meet the Bachelor’s requirement, but not a combination of degrees and experience.

–          Qualification for EB2A based on a US Master’s degree or higher, or equivalent requires a copy of the qualifying degree (Master’s or Doctorate) and transcripts. If the degree was  not earned in the United States, it must be accompanied by an educational equivalency evaluation finding the foreign education equivalent to a US Master’s degree or higher.

–          Qualification for EB2A based on a Bachelor’s degree plus five years of progressively-responsible experience requires copies of the foreign national’s degree(s), transcripts,   educational evaluation (if foreign degree), and employment letters documenting at least five years of related and progressively higher-level experience following the degree. The timing of the experience is important as it must be post-Bachelor’s and also generally cannot be gained with the US Employer sponsoring the foreign national for permanent employment.

Unfortunately, USCIS does not allow the combination of degrees or work experience to meet the Bachelor’s degree requirement under EB2A. Often individuals with education from India are unable to qualify for EB2 when they possess a three-year Bachelor’s degree followed by a two-year Indian MS program. Under currency educational equivalency standards, USCIS finds this specific combination to equate to a US Bachelor degree, plus 1 year of education. However, to get to the US Bachelors’ equivalency determination, the evaluator must consider both the foreign Bachelor and Masters degrees. USCIS does not permit the combination of educational programs to obtain the necessary US BS degree equivalency (plus the 5 years of progressively responsible work experience) for EB2 processing. USCIS takes the position that a US bachelor’s degree or foreign equivalent degree for EB2 purposes requires a single-source four year degree, followed by five years of progressively responsible work experience. Matter of Shah, 17 I7N dec 244 (Reg’l Comm’r 1997). While there has been some limited success in this category for individuals with 3-year Bachelors followed by 2-year Masters degrees from India, USCIS’ treatment of these cases is inconsistent and the large majority of individuals with a foreign three year Bachelor‘s followed by a two year Master’s will find it difficult to qualify in EB2. It should be noted, however, that individuals with a three years Indian Bachelor‘s followed by a three year Master’s often obtain an educational evaluation equivalency to a US Master’s. In those cases EB2 qualification is possible based on the Master’s equivalency.

Qualifying under EB2 always requires a two-prong analysis: first, the employer must show that the job offered normally requires an advanced degree (beyond the baccalaureate) in a related field, and (2) that the foreign worker possess such a degree, or the equivalent. Often individuals believe that, just because

they have a four-year Bachelors and five years of progressive related experience, or a Master’s degree, they will qualify for EB2. That’s false. It’s more complicated than that, and best demonstrated through examples.

Example 1: The employer’s actual minimum requirements do not qualify for EB2: Assume foreign national has a Master’s degree in Software Engineering and is offered a position as a Software Developer at a US software development company. The US Company will hire applicants with Master’s degrees in Software Engineering, but also hires individuals with related Bachelor’s degrees and two years’ experience. Here, because the employer’s own minimum requirement is below the EB2 legal requirement, this case may not proceed as an EB2 case. It would qualify as an EB3 case.

Example 2: The employer’s requirements qualify for EB2 but foreign national’s qualifications fall short under analysis of qualifications for Green Card processing: Foreign national has earned a U.S. Master’s degree in Urban Planning from a US university, and also holds a Bachelor of Computer Applications (3-year degree) from India. He also has 10 years of prior software development experience. He holds an H1B visa as a Software Engineer. The company’s minimum requirements are a Bachelor’s degree in Computer Science or related, and at least five years of experience. These minimum requirements will qualify for EB2. The FN believes that since she has earned a U.S. Master’s and has 10 years of experience, she will qualify for EB2. But that’s not the case. The US Master’s degree is degree unrelated to the job offer. And while for H-1B purposes, education and experience can be cobbled together to get a Bachelor’s equivalency, experience cannot be substituted for education for purposes of EB2 qualification. Employer would need to revise its requirements to qualify the foreign national for a Software Engineer position under EB3 skilled workers category.

Example 3: The employer’s requirements exceed DOL’s standard requirements: In a third example, assume the foreign national has a Master’s degree in Childhood Education and is offered a position as a Nanny by a family wanting the best possible care for their children. The family requires all applicants to have a Master’s degree in Childhood Education or a related field and won’t accept anything less. Here, the employer’s minimum requirements meet the EB2 standard. However, the employer’s requirements exceed those considered normal by the DOL for a Nanny position. To prevail, the Employer would need to prove a business necessity for its inflated requirements.

DOL’s role during the labor certification process is to protect the US labor market and ensure that the US employer is not rejecting qualified US applicants in favor a better-qualified foreign workers by increasing its minimal requirements. DOL has defined a normal range of requirements for each occupational category. When an employer provides job requirements that exceed that which have been defined as ‘normal’ to the occupation, the employer must demonstrate a business necessity for the heightened job requirements. For a Nanny, the normal requirements include training in vocational schools, related on-the-job experience, or an associate’s degree. The Petitioner would likely not prevail in proving a business necessity for requiring a Master’s in Childhood Education.

Business Necessity requires the employer to demonstrate that its stated minimum requirements for the job offer are justified by business necessity as set forth in the applicable regulations (20 CFR Section 65.17(h) and further explained in a subsequent case, Matter of Information Industries, Inc., 88 INA 82 (1989)). The job requirements must bear a reasonable relationship to the position in the context of the employer’s business, and must be essential to perform, in a reasonable manner, the job duties as described by an employer. The employer must also show that its requirements were not just inflated or

‘tailored’ to this particular foreign national’s qualifications – but that all similarly employed past and present employees held similar qualifications.

In the context of an IT employer’s positions, DOL has defined that the normal requirements for positions such as Software Engineer or Computer Systems Analyst (for example) are actually at the EB3 level, and therefore should normally require a Bachelor’s Degree and a minimum of two years of experience. Therefore, whenever the position meets EB2 requirements, the employer must be ready with business necessity documentation.

‘Exceptional Ability’ EB2B Qualification: One might also qualify for EB2 (even without an advanced degree), if he/she has exceptional ability in the sciences, arts, or business. This category also still requires a labor certification from DOL, unless the foreign national’s work is also proven to be in the ‘national interest’.

Exceptional ability is defined as ‘a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” It is a lower standard than the EB-1 (first preference) exceptional ability category, but does require a showing of how the foreign worker is more distinguished than others in his/her field. He/she must document that his/her skills are “significantly above” his/her peers in the profession.  The individual must provide documentation of at least three of the following:

  1. An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
  2. Letters documenting at least ten years of full-time experience in the occupation being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
  5. Membership in professional associations;
  6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

If the above standards do not apply to the petitioner’s occupation, other comparable evidence of eligibility could also be acceptable. In addition to proving the above minimum criteria, testimony from prominent experts about the foreign national is important for showing exceptional ability. USCIS securitizes these cases closely, so it is important to present high-quality and reliable documentation.

Even though EB2B exceptional ability still requires a labor certification application, a use of this subcategory of EB2 is that it could allow an individual to qualify for EB2 even if he/she lacks an ‘advanced degree’ (Master’s degree or 4-year Bachelor‘s followed by 5 years of experience). That is, if the foreign national can document his/her ‘exceptional ability,’ and the employer documents its need for an employee with that level of ability.

EB2B: National Interest Wavier (NIW)

Both professionals with advanced degrees and individuals with ‘exceptional ability’ may seek to skip the entire labor certification process if their presence in the US will have a significant benefit to the US in the future.  Their immigration is deemed in the ‘national interest.’ INA Section 203(b)(2)(A) and (B). These are the only individuals that could self-sponsor for a green card; therefore a permanent job offer from a US Employer is not required.

The definition of what is, and what is not, in the ‘national interest’ has been outlined in case law, and was recently revised in a December 2016 decision in the Matter of Dhanasar. The new analytical framework is as follows:  (1) the foreign national’s employment must be in the area of ‘substantial merit and national importance’, (2) the foreign national must be ‘well positioned to advance the proposed endeavor’, and it must be documented (3)’that, on balance, it would be beneficial to the United States to waive the requirements of a job offer’. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

In considering substantial merit, the focus is on the endeavor the foreign national is to pursue.  The endeavor may demonstrate merit in a range of areas such as entrepreneurialism, employment, education, science, technology, housing, environment, or healthcare systems.  Merit may be demonstrated by direct economic impact or indirect economic benefits.  In reference to national importance, the focus is potential prospective impact where broader implications are considered.  For example, if an endeavor is going to create jobs, result in medical advances, or improve manufacturing processes, it is more likely to be understood as having national importance.  In determining a foreign national’s ability to advance an endeavor several factors are considered:  education, skill set, experience, progression of projects, interest in prospective customers, clients, investors, etc.  Final review is given to the foreign national’s qualifications and the endeavor.  Lastly, the petitioner must prove, on balance with all other things considered, it would be beneficial to waive the labor certification process.

In all cases, supporting evidence is essential to proving qualification for a NIW. And expert witness testimony is essential to prove the case. Some of the evidence USCIS is looking for to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

  • Reliable evidence of credentials
  • Copies of published articles that cite or otherwise recognize achievements
  • Copies of grants or other funding received listing the amount and terms of the grants, as well as the principal and co-investigators
  • Documents showing how the foreign national’s work is being implemented by others, for example:
  •           Contracts with companies using the FN’s company’s products
  •           Documents showing licensed technology that the FN and/or FN’s company invented or co-invented, and how that licensed technology is being used by others
  • Patents or licenses awarded to FN and/or an FN company with documents showing how they are being used and why they are significant to the field.
  • Evidence of membership in professional associations

III.  EB3: Criteria

EB3 is available to professionals, skilled workers, and a catch-all category of other workers.

Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the Bachelor’s degree, therefore a single-source degree equivalent to a US Bachelor’s is required. In additional, the offered permanent position must require at least two years of experience or training.

Skilled worker positions are not seasonal or temporary, and require at least two years of experience or training.

Other workers are in positions that require less than two years of higher education, training, or experience.

While eligibility requirements for the EB-3 classification are less stringent than the EB-2 classifications, there is a long backlog for visas in all countries of chargeability. Additionally, in all EB3 cases, the employer must always complete mandatory recruitment and obtain a labor certification from the DOL.

Additionally, EB3 wages are often significantly lower than EB2 wages, meaning that sometimes even when a foreign worker qualifies for an EB2 position, the Employer is only willing to move forward with sponsorship in the EB3 category.

IV.  Conclusion

The difference between the EB2 and EB3 categories is significant – as well as the processing times. Everyone desires the quickest route, but a number of considerations must be weighed before jumping into the process. It is essential to anticipate not only the foreign worker’s credentials, but also the Employer’s minimum job requirements, the job’s offered wage, and the DOL and USCIS’s examination of the foreign worker’s credentials. These factors directly impact the choice of EB2 or EB3 category at the I-140 petition phase. Although EB2 is usually faster, that’s only the case if everything aligns perfectly and USCIS agrees with the sponsoring employer’s requested preference category.