You Have Your H-1B Visa Now, How to Get EB-2 or EB-3

Most of the employment-based petitions require a Permanent Labor Certification (Labor Cert) from the Department of Labor and a permanent, full-time job offer. The operation of the permanent labor certification program is generally referred to as PERM. Once a permanent labor certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

Generally speaking, there are three steps before you become a permanent resident of the United States. First is that your employer must seek a PERM to show there is no Americans available for the job offered to you. Second is to submit the Form I-140, Petition for Alien Worker, to USCIS. Last is the filing of the Form I-485, Adjustment of Status, or Consular Processing if the applicant are outside of the U.S.

How long will the entire process take? Well, before seeking the PERM, the employer needs  to advertise the job offer to potential job seekers. After that, the Department of Labor has to adjudicate the PERM, which will take four to eight months. If the PERM is successful, and the employer files the Form I-140 immediately after, it will take another six months. However, the employer can seek premium processing to speed up the process for a fee. If the I-140 passes, the applicant now awaits the visa bulletin to update his or hers priority date. EB-2 or EB-3 of China faces a relatively long wait, but not all countries are the same. Once the priority date is current, the applicant can seek to adjust status, which will take another approximately six months to adjudicate.

Employment-Based Immigration: Second Preference EB-2

An employment-based, second preference visa is available to you if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.

  • Under the Advanced Degree subcategory, you have to prove that the job you apply for require an advanced degree and you possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). Typically, documentations like official academic record showing you have an advanced degree is sufficient.
  • If you are an alien with exceptional ability in the sciences, arts, or business, you can apply for EB-2 as well. Exceptional ability documentations generally include, academic record, license to practice your profession, at least 10 years of full-time experience, recognition for your achievements, and etc.
  • Last but not least, a national interest waiver (NIW) will waive the Labor Certification process because your admission is in the interest of the United States. NIW applicants generally need to prove the combined quality of exceptional ability and your employment will greatly benefit the nation. In addition, the alien seeking a NIW can petition for him or herself.

Employment-Based Immigration: Third Preference EB-3

The EB-3 category is designed for skilled worker, professional, or other worker.

  • Within the Skilled Worker subcategory, you must show that your job requires a minimum of 2 years training or work experience.
  • The Unskilled Worker subcategory requires the applicant to demonstrate capability of performing unskilled labor.
  • If you seek to be qualified as a professional, you must be able to demonstrate that you possess a U.S. baccalaureate degree or the equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. There is no substitution for the degree requirement.




Author: Maya King

Attorney Maya King helps individuals, families, and businesses navigate the complex United States immigration system.

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