An EB-2 petition is an employment-based 2nd preference petition for a foreign professional with an advanced degree or its equivalent (master degree or higher), or a foreign national who has exceptional ability in the sciences, arts, or business. In some instances, a professional with a Bachelor’s degree and five years of progressively responsible experience in the job being offered may be considered to possess the equivalent of a Master’s degree in the field.

An EB-3 petition is an employment-based 3rd preference petition for a foreign national employee who has a Bachelor’s degree, or, if not possessing a degree, is a skilled worker, meaning the foreign national has at least two years of work experience for the job being offered. Additionally, there is a sub-category for unskilled workers that requires less than two years experience.

Before explaining the choice between EB-2 and EB-3, it is important to understand the following background information:

Priority Date
The priority date is the date that an alien initially expresses his or her intent to immigrate to the United States through an appropriate petition. Namely, for employment-based applicants, this date is the earlier of the date an application for labor certification was received by the DOL or the date that an immigrant preference petition was filed. For certain kinds of employment based petitions a labor certification is not required, such as for national interest waiver applications and petitions for aliens of extraordinary ability or outstanding researchers/professors. In these kinds of cases, the immigration process starts with the immigrant petition rather than the PERM labor certification application.

If a PERM labor certification application is a prerequisite for an immigrant petition, as it is in most EB-2 and EB-3 categories, the petitioner cannot file the I-140 petition until after the DOL approves the PERM labor certification application. The priority date is thus the filing date of the PERM labor certification application with the Department of Labor. The beneficiary will retain this priority date when filing the I-140 petition once the DOL certifies his or her PERM labor certification application.

For family-based applicants, this is the date the USCIS first received the immigrant petition (Form I-130) filed on the alien’s behalf.

Immigrant Visa Number Availability
In addition to the apparent difference in the education and experience requirements, another significant difference between EB-2 and EB-3 categories is that visa number availability is different for the two categories. Visa number availability means whether there are available immigrant visas that beneficiaries of employment or family based petitions can apply for. This is regulated by the visa number quotas set by the U.S. Congress. Whether there will be an available immigrant visa number thus depends on the quota and how many people are waiting for immigrant visas in the same category.

Cut-off date
Because certain aliens are subject to restrictions on the annual immigrant visa quota, and sometimes, the quota has been reached in some categories, or there are many people waiting for visa numbers, the State Department publishes a monthly waiting list, called the Visa Bulletin. The Visa Bulletin is based on priority dates, to regulate who is eligible to apply for adjustment of status or complete consular processing. On that list, the State Department provides a date for each family-based or employment-based preference category. That visa availability date is known as the “cut-off date.” Please visit Visa Bulletin for detailed Visa Number information.

What is the significance of the priority dates and the cut-off dates?
For those aliens who are subject to the annual immigrant visa quotas, the priority date and the cut-off date determine when they can file an application for adjustment of status or complete consular processing in order to become a permanent resident. If their priority dates are earlier than the cut-off dates, they may apply for adjustment of status or start the consular processing. This is referred to as a “current” priority date. If their priority date is later than the cut-off dates then they must wait until the cut-off dates pass their priority dates. Further, if an application is in process, and the visa numbers retrogress, then an alien will have to wait until his or her priority date becomes current again to continue processing his or her application. Therefore, the earlier the priority date, the sooner the alien will become eligible to apply for permanent resident.

The Effect of the PERM Regulations on the EB-2 versus EB-3 decision
The PERM regulations provide that if a position requires qualifications that are greater than those defined in the OES Job Zones level and SVP (Specific Vocational Preparation) level, the employer may be required to provide a business necessity justification.

The OES Job Zones have five levels, among which Job Zone level 4 and Job Zone level 5 are most relevant to the PERM applications. Every occupation, or a similar occupation to it, is classified under the various levels. These are not very flexible standards. In order to determine what level job is being offered, you match the job duties to the same or similar occupation in the OES database. Then you see what Job Zone level it has been classified under. For example, a computer programmer has been classified under Job Zone level 4.

According to the DOL, a position that has been classified under Job Zones level 4 usually requires a Bachelor’s degree. A position that has been classified under Job Zones level 5 usually requires a minimum of Bachelor’s degree and may also require an advanced degree. The Job Zones classification is related to the Standard Vocational Preparation level accorded to each position.

Basically, what the DOL is doing is saying that occupations in Job Zones level 1 are the kinds that normally require the least amount of skill, training and education. Occupations in Job Zones level 5 are the kinds that normally require the most amount of skill, training and education. The Job Zones and SVP scales are objective criteria the DOL uses to help distinguish between low skill and high skill jobs.

For example, a Job Zone level 4 position has an SVP of 7, while a Job Zone level 5 position has an SVP of 8. According to the DOL, an SVP of 7 is defined as a position that requires at least two years and at most four years of experience, education, and training combined. An SVP of 8 is defined as a position that requires at least four years and at most ten years of experience, education and training combined. This is how the DOL differentiates between the various Job Zone levels. A job offer, in order to be “normal,” must conform to both the Job Zone level requirements and the SVP requirements.

For a position that is classified under Job Zone level 4, if the employer requires a Bachelor’s degree and 3 years of experience, the employer will be exceeding the requirements. According to the DOL, a Bachelor’s degree is the same as 2 years of experience, education or training. Thus, in our example, the employer is requiring experience, education and training that totals 5 years of experience, when a Job Zone level 4 position is only allowed to require up to a maximum of 4 years of experience. In this case, the DOL may consider the requirement to be unduly restrictive and request that the employer provide a business necessity justification.

The Job Zone level directly affects one’s choice with regard to selecting an EB-2 and EB-3 position. For example, the positions of computer programmer and computer software engineer are both Job Zone level 4 positions. If an employer intends to require a master’s degree for the position of computer programmer in order to file an EB-2 petition, the DOL may challenge that the employer’s requirements are unduly restrictive because they exceed the level 4 requirements. The DOL may require the employer to provide documentation and evidence to justify the business necessity for the higher education requirements.

Significance of Choosing between an EB-2 and EB-3 position
The immigrant visa numbers for the EB-3 category frequently retrogress or otherwise become unavailable for those born in China, India, and the Philippines. Each country has an annual quota of assigned immigrant visa numbers for each employment-based category. If the visa number for one country is oversubscribed in one category, those visa numbers will retrogress or become unavailable to beneficiaries born in those countries. In other words, even if the PERM application and immigrant petition (Form I-140) are approved, but the visa number is not available to the alien beneficiary, the alien will NOT be eligible to file for adjustment of status or consular processing to obtain lawful permanent residence.

Sometimes, the EB-2 visa numbers retrogress as well. During some periods of the year, the immigrant visa numbers may become totally unavailable due to over subscription. For immigrant visa number availability, please check the Visa Bulletins posted on Department of State’s website.

Generally, if there is any backlog, the EB-2 category usually has a shorter waiting period than the EB-3 category. If the visa numbers are not current for the category according to the alien’s priority date, the alien has to wait until it becomes current before being eligible to file an application for adjustment of status (Form I-485) or complete consular processing in order to become a lawful permanent resident. Therefore, it is of major concern whether an alien should file under the EB-2 or EB-3 category since such a decision will determine whether visa numbers are current.

Solution
If an employer has real business needs justifying the requirement of education and experience qualifications that exceed the SVP, the employer may still go ahead and file an EB-2 PERM application. The employer should be prepared to provide business necessity documents and/or evidence to justify its need once the DOL makes a request for such documentation. If the DOL requests documentation and/or evidence to support the business necessity, the PERM application may be delayed. However, so long as there is a real business need for the higher requirements, the application may still be approved.