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EB-2 And EB-3 Under PERM

EB-2 – Members of the Professions with Advanced Degrees

The employment-based second preference (EB-2) category is available to foreign workers who are members of professions holding advanced degrees or their equivalent. An advanced degree means a U.S. master’s degree (or foreign equivalent) or higher. In lieu of holding an advanced degree, a foreign national may qualify for EB-2 classification if he or she has attained a U.S. bachelor’s degree (or the foreign equivalent) and at least five years of progressive experience. Progressive experience refers to experience in the occupation at increasing or advancing levels of responsibility and knowledge in the specialty.

A foreign national may not use experience and education that is equivalent to a bachelor’s degree to qualify for EB-2 classification. This restriction often frustrates foreign nationals who have attained three-year bachelor’s degrees and have many years of experience in their occupation. For instance, a foreign national who has a three-year bachelor’s degree and 10 years of experience in the occupation will not qualify for EB-2 classification.

In April 2007, the Nebraska Service Center clarified its policy with respect to which combinations of three-year foreign bachelor’s degrees and other degrees will be considered to be equivalent to a U.S. Master’s degree. Foreign nationals with certain combinations of three-year bachelor’s degrees and post-baccalaureate degrees (i.e., foreign master’s degrees and post-graduate diplomas) may qualify for EB-2 classification. Cases involving the combination three-year bachelor’s degrees and a foreign master’s degree are assessed on a case-by-case basis, and therefore, require careful preparation.

One common misconception is that a foreign national will automatically qualify for EB-2 classification if he or she has a U.S. master’s degree (or the equivalent) or a U.S. bachelor’s degree (or the equivalent) and five years of progressive experience. To merit EB-2 classification, the position must be one which requires an advanced degree or the equivalent. For example, consider a foreign national who has a U.S. Master’s degree in Computer Science who is working as a programmer. This individual will not qualify for EB-2 classification if the minimum requirements for the position are a bachelor’s degree and two years of experience.

EB-3 – Skilled Workers, Professionals and Other Workers

The employment-based third preference (EB-3) category is available to the following three categories of foreign workers: (1) Skilled workers (for positions requiring at least two years of experience); (2) Professionals (for positions requiring at least a U.S. bachelor’s degree or the foreign equivalent); and (3) Other workers (unskilled workers for positions requiring less than two years of experience).

Unlike the EB-2 category, a foreign national may combine experience and education to qualify for EB-3 classification.

Procedures for EB-2 (Members of the Professions with Advanced Degrees) EB-3

To sponsor a foreign national for a green card under both the EB-2 category for members of professions holding advanced degrees and the EB-3 category, an employer must complete the foreign labor certification (PERM) process. Once the Department of Labor has certified the employer’s foreign labor certification (PERM) application, the employer may file a petition with USCIS to classify the foreign national as an alien worker (I-140 petition). The petition must include the certificated foreign labor certification application along with evidence of the foreign national’s qualifications and the employer’s ability to pay the proffered wage.

The employer’s requirement to demonstrate its ability to pay the foreign national the proffered wage can present a challenge for some employers. The employer must be able to pay the proffered wage from the date the foreign labor certification application was filed with the Department of Labor (the priority date) up until the foreign national becomes a lawful permanent resident. USCIS issued a memorandum stating that adjudicators should make a positive ability to pay finding if the employer satisfies one of the following three tests: (1) the employer’s net income is equal to or greater than the proffered wage; (2) the employer’s net current assets are equal to or greater than the proffered wage; or, (3) the employer has been employing the foreign national and has paid or is paying at least the proffered wage. To establish its ability to pay, an employer must submit its federal income tax returns, annual reports, or audited financial statements. Employers with more than 100 employers may simply supply a statement from the company’s financial officer.

Over the past several years, I-140 petitions have been subjected to rather lengthy processing times. According to USCIS, as of November 30, 2009, the national average processing time for I-140 petitions was 10.6 months. Premium processing service was suspended on July 24, 2007, but has since been reinstated in limited circumstances.

In order for a foreign national to file a green card application concurrently with the employer’s I-140 petition, the individual’s priority date must be current (an immigrant visa must be immediately available to the foreign national). If the foreign national’s priority date is not current, he or she must wait until it becomes current to apply for a green card. In turn, this restricts the foreign national’s ability to change employers without foregoing the green card process which has been initiated by the current employer. In general, a foreign national may “port” to a new employer once he or she has filed a green card application (I-485), which has been pending for 180 days. If the I-140 petition has not yet been approved, the individual may still change employers without foregoing the green card process. However, in this scenario, the foreign national will be subject to additional risks if the I-140 petition is ultimately denied, revoked or withdrawn.