An EB-2 petition is an employment-based 2nd preference petition for a position that requires a master’s degree or exceptional ability.  In some instances, a professional with a bachelor’s degree and five years of progressively responsible experience 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 position that requires a bachelor’s degree or at least two years of experience (skilled worker category, which does not require a degree).  Additionally, there is a sub-category for unskilled workers that requires less than two years experience. 

Significance of Choosing between an EB2 and EB3 position

Employers and employees filing for permanent residence are faced with the decision to apply either as an EB3 worker or an EB2 worker.  The choice can mean the difference between waiting 2 years for residence or 6 years.  The choice can also mean the difference between a failed application or a successful application.

First, the wait list for the EB3 category if often longer than the wait list for the EB2 category and the priority dates frequently retrogress or otherwise become unavailable for those born in China, India, and the Philippines. Each country is subject to an annual quota of immigrant visa numbers for each employment-based category.   Since more applicants apply than there are visas available, this will mean that even if the immigrant petition (Form I-140) is approved, and the visa number is not available to the alien worker, the alien will NOT be eligible to file for adjustment of status to obtain lawful permanent residence.

Eligibility is based on date of filing.  This date of filing is known as the “priority date”.  In the last few years, it has been typical that visa categories either “retrogress” or become “unavailable” as we get closer to the end of fiscal year on September 30^th, as the visas are granted and the government runs out of visas.

The Department of State publishes these wait lists known as the Visa Bulletin monthly on their website at http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html. 

Second, although the EB2 category is generally preferable, an employer must be careful not to overstate the “minimum requirements” of the position since it can result in denial of the application, lost time, money and effort.