EB2 or EB3: Understanding the Difference

At the Murthy Law Firm, we periodically receive questions from those who do not know the categories of their pending employment-based permanent residence (“green card”) cases. This is a useful piece of information, which determines timeframes and options for an individual or family. While generally available from the employer or attorney filing one’s green card case, there may be some foreign nationals who need to independently verify this information. Some useful guidance is provided here for the benefit of MurthyDotCom and MurthyBulletin readers. It includes possible indicators of the employment-based (EB) preference category assigned to particular I-140 immigrant petitions to help in understanding your situation.

Overview: Differences Between EB2 and EB3

In a green card case based on a labor certification, there are two possible category options: EB2 and EB3. As many of our readers know, however, the difference between these two preference categories is significant – as well as the processing times, in most situations. The category impacts the timing of eligibility for filing an application to adjust status (I-485), one’s eligibility for approval of the I-485, and ultimately, the resulting grant of permanent residence.

Preference Classification Determined by USCIS at I-140 Stage

The first stage in a labor certification-based green card process is the filing of the PERM labor certification (PERM LC). This application is filed with the U.S. Department of Labor (DOL). The contents of the PERM LC determine the appropriate EB category. However, the selection and assignment of a preference classification occurs during the second stage, which is the I-140 immigrant petition. The I-140 is filed with the U.S. Citizenship and Immigration Services (USCIS).

In the PERM LC, the employer states appropriate minimum job requirements in terms of education and experience. The sponsored individual must be able to demonstrate that s/he possesses the required education and experience as of the date the PERM LC is filed. The education and experience requirements dictate the EB category of the case during the I-140 stage. The employer requests the EB category in the I-140 petition, based upon the PERM LC. The USCIS makes the final determination of whether the case fits within the requested category during adjudication of the I-140 petition.

EB2 Requirements and Determination Criteria

The adjudicator determines the I-140’s preference classification, following the legal guidelines for each category. The EB2 classification is for those positions offered to individuals who are members of the professions holding advanced degrees.

EB2 Based on Master’s Degree or Equivalent

There are several possible ways for a sponsored individual to qualify for EB2. Most commonly, it requires a showing that the employer needs an individual with an advanced degree in the position and that the sponsored worker has that degree. The qualifying degree may be an advanced degree (master’s or doctorate) earned in the United States or its foreign equivalent.

EB2 Based on BS Degree Equivalent Plus 5 Years Experience

Alternatively, EB2 qualification includes a position requiring a U.S. bachelor’s degree or its foreign equivalent and five years of progressive (i.e. post-baccalaureate) experience. For cases filed on this basis, these requirements must be met in order for the USCIS to assign the EB2 classification to the petition. Thus, if an individual knows the requirements for the position, as stated in the PERM LC, this will indicate the case category.

EB2 Based on Exceptional Ability

It should be noted that EB2 is also appropriate for those with exceptional ability in the sciences, arts, or business, who will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. This option is outside the scope of this article, but it is a matter to discuss with your attorney, or with an attorney at the Murthy Law Firm, if you believe you may be eligible for this category of EB2.

Receipt and Approval Notice: Category Stated

The USCIS receipt notice and approval notice for Form I-140 indicate the EB category of the case. If the I-140 is determined to be in the EB2 classification, then the USCIS issues a receipt notice (Form I-797), which usually has this notation in the Notice Type box: “Mem of Profession w/Adv Deg, or of Exceptn’l Ability Sec. 203(b)(2).” The same information is stated on the approval notice once the petition is approved.

EB3 Requirements and Determination Criteria

The EB3 classification incorporates skilled workers and professionals. In addition, EB3 has a subcategory of other workers. Although all three of these types are assigned to the EB3 classification, typically, those filed as EB3 other workers are subject to an even longer wait for their priority dates to become current.

EB3 for Skilled Workers

The skilled workers classification is for individuals with at least two years training or experience not of a temporary or seasonal nature.

EB3 for Professionals

The professionals classification is for individuals who hold at least a U.S. bachelor’s degree, or a foreign equivalent, and who are members of the profession. When the USCIS issues a receipt and approval notice in the EB3 category, it usually contains the notation: “Skilled Worker or Professional, Sec 203(b)(3)(A)(i)” or “(ii).”

EB3 for Other Workers

The other workers classification is for individuals who are capable of performing unskilled labor. The employer petitioning to fill a position in this category typically requires less than two years of training or work experience. The notation on the I-797 usually reads, “Other workers Sec. 203(b)(3)(A)(iii).”

EB Category on I-140 Petition Receipt / Approval Notice

Knowing your EB preference category and the priority date assigned to the I-140 petition is vital to understanding your immigration situation. This information is found on the I-140 receipt and approval notices. It is not necessary to memorize sections of law in order to decipher these notices. For EB2, it is enough to remember that the section for EB2 ends in 2. For EB3, the section ends in 3, but one must remember that, if the Roman numeral (iii) appears, s/he is in other workers. And, as explained above, the answer as to the EB preference category is also contained in the requirements for the position.

Conclusion

Sponsored workers who do not have access to the I-797 (receipt or approval notice) for their I-140s, may be able to obtain these by requesting copies of their A files under the Freedom of Information Act (FOIA). While the I-140 is the employer’s filing, depending upon the situation, a FOIA request may enable one to obtain copies of the I-140 filing and related notices and USCIS correspondence. Once a copy is in hand, the preference classification should be clear. Individuals for whom questions remain on this matter may contact the Murthy Law Firm for a consultation with one of our attorneys.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.