News & Insights

EB-1, EB-2, National Interest Waiver, and EB3

For those considering obtaining a green card through employment-based means there are a number of options to consider.

The vast majority of applicants typically file either an EB-2 or EB-3.  Historically, most candidates prefer EB-2, however, because of the large number of EB-2 filings there became a backlog and EB-3 became more of an attractive option.  However, at the time of writing this article, EB-3 is now experiencing a backlog.  The benefit of doing an EB-2 filing is that it’s possible to downgrade to EB-3 by re-filing the I-140.  However, if you have an approved EB-3 you can’t simply upgrade to EB-2 without re-doing the PERM process.

Before we discuss EB-2 v EB-3, let’s look at EB-1 and National Interest Waivers.   Although these options may only be available to a select few, because of the stringent requirements, for those that qualify, they may be a faster route to obtaining an employment-based green card as the wait time for these is usually less than filing a regular EB-2 or EB3 petition.

EB-1

EB-1 filings fall into 3 categories, as follows:

  • EB-1AExtraordinary ability in the sciences, arts, education, business or athletics through sustained national or international acclaim. Although an offer of employment is not required for an EB-1a filing, this category is reserved for those in the top 1-2% of their field and requires a substantial amount of documentation demonstrating sustained or international acclaim. Obtaining approval in this category is extremely difficult.

 

  • EB-1B- Outstanding Professors and Researchers. To qualify for EB-1B an applicant must demonstrate international recognition for outstanding achievements in a particular academic field and must have at least 3 years’ experience in teaching or research in that academic area. You must also be entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university, the institution of higher education, or a private employer.

 

  • EB-1C- Multinational Manager or Executive. This category is a national progression for a manager/executive who has entered the U.S. on an L-1A visa, although having L-1A approval is not necessarily a prerequisite. An applicant must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if already working for the U.S. petitioning employer. The U.S. petitioner must have been doing business for at least 1 year, have a qualifying relationship to the entity the applicant worked for outside the U.S., and intend to employ the applicant in a managerial or executive capacity.

National Interest Waivers

A National Interest Waiver is a type of EB-2 petition.  However, unlike typical EB-2 filings, an applicant does not need to go through the PERM process (Labor certification).  To qualify an applicant must have a permanent job offer and be working in an employment field that would benefit the nation.  Similarly to EB-1A, this category is limited to a limited number of people and requires a substantial amount of documentation to demonstrate that an applicant is working in an area of national importance and that they are best placed to advance the proposed endeavor.

EB-2 v EB-3

Most EB-2 filings are filed under the advanced degree requirement, whereas most EB-3 filings are filed either as a professional worker or skilled worker.

The advanced degree requirement for an EB-2 filing requires an applicant to possess a U.S. Master’s degree or equivalent in a related field to their employment, although a candidate can also qualify based on a Bachelor’s degree and 5 years of progressive post Bachelor’s experience.  Based on the alternative requirement the Bachelor’s degree does not need to be related as the 5 years of experience is what makes the degree related.

The professional worker filing for EB-3 requires an applicant to have a related U.S. Bachelor’s degree or equivalent whereas the skilled worker filing requires at least 2 years of experience.

Those who cannot meet the advanced degree requirement, for example, a candidate with a Bachelor’s degree and only 3 years of experience would be better suited to a Professional worker filing.  If their Bachelor’s degree is completely unrelated to their occupation, then a skilled worker filing would be more appropriate.

If you qualify for EB-2 this is usually a better option than EB-3.  If the dates for EB-3 move faster in the future you can always downgrade to EB-3 to take advantage of the reduction in the backlog.

To explore your options or to discuss which category is most suited to you please contact our Senior Immigration Attorney Chris Prescott at cprescott@patellegal.com

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