What is the EB-2/EB-3 Green Card?
The EB-2 and EB-3 visas are permanent employment-based Green Cards of the second and third priority, respectively. For reference, the first priority visa (EB-1) is reserved for those with extraordinary ability, the fourth priority (EB-4) is reserved for certain religious workers, and the fifth priority (EB-5) is reserved for foreign investors. Among all of these, the EB-2 and EB-3 are the most feasible and popular visa categories for foreign workers who wish to take up employment in the U.S. on a permanent basis. But these visas are not fast, often taking between 12-24 months total, and are not cheap due to the numerous and delicate procedural hurdles that must be undertaken to gain approval.
All EB-2/EB-3 applications require a job offer that is not temporary or seasonal, which we do not source for you. Once you find a job offer from a U.S. sponsoring employer we can help you and your U.S. sponsor through the entire process. The position must fit into the EB-2 or EB-3 criteria as described below, and the foreign employee must qualify for the position with related education or work experience. The employer must offer sufficient wages for the position and must have the ability to pay the offered wage, which can be demonstrated with alternate methods as be determined by your immigration attorney after an analysis of the company’s financial standing and records.
Another major requirement for EB-2 and EB-3 Green Card applications is Labor Certification by the U.S. Department of Labor, which is attained through the PERM process (Program Electronic Review Management), the DOL’s web-based process by which labor certification requests are processed. For the EB-2/EB-3 Green Cards, employers must gain Department of Labor (DOL) Labor Certification before the immigration application process can even begin in order to ensure the U.S. job market will not be adversely affected. The U.S. employer must undertake specific “recruitment” steps to test the U.S. labor market and ensure that this position cannot be filled by a qualified U.S. citizen or permanent resident. This requires numerous methods of publishing a very specifically worded “help wanted” advertisement.
The EB-2 and EB-3 application processes are similar and your immigration attorney will help determine which exact category is proper depending on factors such as employee credentials, the job offer details, visa availability at the time of application, etc. These visas are issued by the Department of State on a limited basis according to the visa bulletin. Applicants from India, China, Mexico, and the Philippines will experience longer wait times for their visas because those countries are backlogged compared to the rest of the world.
The main EB-2/EB-3 criteria are described below along with information on the alternative qualification criteria for exceptional ability and National Interest Waivers, both of which differ from the regular EB-2 in that they allow the employer to bypass the DOL in the Labor Certification process and go straight to the USCIS.
The EB-2 visa is for professionals with an advanced degree (Master’s or Doctorate) or equivalent work experience, which is satisfied with a bachelor’s degree plus five years of progressive work experience in previous jobs that are related to the offered position. This is proven using academic records and experience letters from previous employers.
The EB-3 visa is for skilled workers, professionals, and “other workers.” The “skilled workers” subcategory needs a job offer for a position that requires a bachelor’s degree or two years of qualifying training or work experience. The “professionals” subcategory is for positions that require at least a Bachelor’s degree within the “Professions,” a legal term of art that includes, but is not limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. The “professional” subcategory allows a U.S. Bachelor’s degree or foreign equivalent, but will not allow work experience to substitute such a degree. The “other workers” subcategory is reserved for unskilled positions that require less than two years of training or experience.
An integral aspect of the EB-2 and EB-3 application process is attempting recruitment of U.S. workers to ensure that the domestic labor market will not be adversely impacted by the introduction of a foreign laborer. Regulations require that the Labor Certification and recruitment efforts reflect the actual minimum requirements for the job opportunity and not be “custom tailored” for any specific laborer who may have more than the required credentials for the position.
The recruitment process requires different steps depending on whether the job is professional or non-professional. Two mandatory recruitment steps, state job advertisements and newspaper advertisements, are required for all positions. Professional positions also require a number of additional recruitment efforts as described below. The mandatory recruitment efforts must be completed in a five-month window of time in relation to the Labor Certification application with the Department of Labor: these two steps must be initiated no sooner than 180 days before filing the Labor Certification application, with a 30-day “silent period” right before the filing of the Labor Certification application. The employer cannot have newspaper advertisements published during this 30-day “silent period.”
The mandatory recruitment efforts that apply to both professional and non-professional positions include the publication of two separate newspaper advertisements in the major Sunday edition newspaper in the area of intended employment as well as the submission of a job order (help wanted advertisement) with the State Workforce Authority (SWA) in the state of intended employment. If the job is in a rural area without a Sunday edition newspaper then non-Sunday advertisements can be used instead. Also, if the job is a professional one that requires experience and an advanced degree and job advertisements in that profession are typically in professional journals then the employer can replace one of the Sunday advertisements with an advertisement in an appropriate professional journal.
If the offered position is a professional one then additional recruitment efforts are needed. The U.S. employer must use any three of the following advertisement methods:
- Job fair;
- Employer’s website;
- Job search website;
- College campus interviewing;
- College campus placement office advertisement;
- Trade journal or newsletter advertisement;
- Private employment firm;
- Employee referral program with incentives;
- Local and ethnic newspaper advertisement;
- Radio or television advertisement.
The recruitment methods must provide very specific information about the job opportunity, including duties, pay, requirements, location, conditions, etc. All of the job offer details must fall within legal parameters in order to gain labor certification. Beware that the USCIS does not count any experience that the foreign worker gained with the same U.S. employer in nonimmigrant statuses such as J-1, H-1, O-1, P-1, etc., unless the positions have job duties that are substantially different. Also, note that a foreign language requirement is not acceptable unless the employer can demonstrate a legitimate business necessity. Your immigration attorney will assess your case and determine what issues might exist and how to best handle them.
Physical Therapists and Nurses (Schedule A, Group I):
There is a sub-category for specific medical professionals, including physical therapists and nurses. These professionals can only obtain their employment based Green Card through this subcategory and cannot use the general application process. Labor Certification applications for physical therapists must include a statement from the licensing official in the state of intended employment demonstrating that the foreign physical therapist qualifies to take the written licensing exam in that state. Labor Certification for nurses requires one of the following to qualify:
- Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS);
- Full, unrestricted, and permanent license to practice nursing in the state of intended employment, or;
- Proof of passage of the National Council Licensure Examination for Registered Nurses (NCLEX-RN).
Exceptional Ability (Schedule A, Group II):
There is a sub-category for those with exceptional ability in sciences or arts (excluding performing arts) as demonstrated by the satisfaction of very specific evidentiary criteria. The standard of “exceptional” is a lofty one, but not as high as the “extraordinary” standard for the EB-1. The benefit of this subcategory over regular EB-2 and EB-3 applications is that the U.S. employer does not have to perform the DOL Labor Certification procedures and can apply directly through the USCIS. The following evidentiary requirements apply:
- Employment offer within the realm of sciences or arts;
- Widespread acclaim and international recognition by recognized experts;
- Work during the last year required exceptional ability;
- Intended employment in U.S. requires exceptional ability;
- Satisfaction of two of the following seven indicators of exceptional ability:
- Receipt of internationally recognized prizes or awards for excellence in the field;
- Membership in international organizations in the field that require outstanding achievement of members as judged by recognized international experts;
- Published material about the alien in professional publications;
- Participation on a panel or individually as a judge of the work of others in the field;
- Original scientific or scholarly research contribution of major significance in the field;
- Authorship of published scientific or scholarly articles in the field, published in internationally circulated professional journals;
- Display of work at artistic exhibitions in numerous countries.
National Interest Waiver (NIW):
Those who qualify for the EB-2 visa as professionals with advanced degrees may further qualify for the National Interest Waiver (NIW), which offers faster processing time with no need for a job offer, U.S. petitioner, or Labor Certification. The standards for this subcategory, contained in INA § 203(b)(2)(A), were recently reframed in the AAO decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). A new three-prong analysis emerged from that precedent decision, whereby the USCIS has the discretion to grant a National Interest Waiver if the petitioner can demonstrate:
(1) that the foreign national’s proposed endeavor has both substantial merit and national importance;
(2) that the foreign national is well positioned to advance the proposed endeavor; and
(3) that it would benefit the United States to waive the job offer and labor certification requirements.
These criteria are demonstrated through evidence of research, grants, publications, expert letters, etc. The bar for National Interest Waivers is a high one, and those who qualify for NIW EB-2 may also qualify for the EB-1 Green Card for extraordinary ability. As such, these professionals with advanced degrees should confer with an immigration attorney to determine the best route in light of the available evidence.