By Attorneys Robert L. Reeves and Joseph Elias

There are several employment based visa categories that allow for immigration to the US. Some categories are more over subscribed than others creating a backlog of several years before immigrant visas can be issued. It is therefore important that an occupation be carefully assessed to determine if it is one that can fit in a category with a shorter wait time.

The employment-based second preference (EB-2) immigrants are typically those who work in highly-skilled occupations that require an advanced degree. Generally, this means one needs a master’s degree or higher for entry into the field, or the equivalent. US immigration law recognizes a bachelor’s degree plus five years of progressively-responsible experience in the field as the equivalent of a master’s degree. Employment-based third-preference (EB-3), in contrast, includes occupations requiring no experience up to a bachelor’s degree with some experience. Because the EB-3 category is substantially backlogged, we are receiving an increasing number of inquiries on how an employment-based immigrant can obtain permanent resident status more quickly through the EB-2 classification.

An occupation may be classified as an EB-2 if the job normally requires a master’s degree or higher. An immigrant worker’s attainment of a master’s (or higher) degree is not sufficient by itself to qualify for EB-2 classification. The job must normally require an advanced degree and/or extensive experience. Examples include economist, physician, pharmacist, and engineering manager. These occupations also tend to require a much higher salary.

Individuals with a bachelor’s degree may qualify for EB-2 if the position offered can normally require a bachelor’s degree plus five years experience, and they have the requisite experience. For example, an individual with a bachelor’s degree in accounting and at least five years of progressively-responsible experience in that field can qualify for EB-2 classification if the job offered is a high-level financial occupation, such as Controller or Chief Financial Officer (CFO). “Progressively-responsible” can include promotions, assumption of additional or more complex duties, and supervisory responsibilities. This person qualifies under the EB-2 category even though he does not have a master’s degree, and can immigrate faster than if he were offered an EB-3 position , such as an accountant or bookkeeper.

There is a modicum of good news, however, for individuals in the EB-3 category. The October 2008 State Department visa bulletin indicates that in the EB-3 skilled or professional worker category, the priority date moved from completely unavailable, to January 1, 2005 for all countries including the Philippines except China, India, or Mexico. The EB-2 category, in contrast has no backlog at all for all countries except for China and India making it a much more desirable category to qualify for.

Whether someone qualifies under the EB-2 or EB-3 category is complex and fact-sensitive for each applicant. Employers and workers seeking to find out whether they qualify for EB-2 or EB-3 category should consult a knowledgeable and experienced immigration law firm.