EB-3 vs EB-2: Which Green Card Category Should You File In?

The EB-3 vs EB-2 choice looks like a question of status: EB-2 is the “higher” category, so it must be better. In practice, the deciding factor is usually the Visa Bulletin. Both categories use the same PERM labor certification and the same Form I-140, and both get the same share of employment-based green cards each year. EB-2 requires more from the job and the worker. EB-3 requires less. Which line moves faster for a worker’s country of birth can change from year to year, and sometimes EB-3 is ahead. The good news is that the choice is not always final.

Where the requirements line falls

EB-2 covers jobs that require an advanced degree, meaning a master’s degree or higher, or a U.S. bachelor’s or foreign equivalent followed by at least five years of progressive post-degree experience. It also covers workers of exceptional ability in the sciences, arts, or business. The job itself must require the advanced degree; a worker with a master’s in a job that needs only a bachelor’s is not an EB-2 case.

EB-3 covers three groups: skilled workers in jobs requiring at least two years of training or experience, professionals in jobs requiring a bachelor’s degree, and other workers in jobs requiring less than two years. Our guide to the EB-3 subcategories explains how each is measured, and our EB-3 employment-based green card page covers how we fit a job to the right category.

Same process, different lines

The steps are identical for most cases in both categories: prevailing wage determination, PERM recruitment and filing, Form I-140, and then adjustment of status or consular processing once the priority date is current. The category is chosen when the I-140 is filed, and it must match the requirements written into the PERM.

What differs is the line. Each category has its own annual allotment and its own columns in the Visa Bulletin by country. Unused EB-1 numbers fall to EB-2, and unused EB-2 numbers fall to EB-3, so demand in one category can affect another. Our explainer on priority dates and filing dates shows how to read the bulletin.

Why EB-3 is sometimes faster

For many applicants, the EB-2 and EB-3 cutoff dates are close. At times, for some countries, EB-3 has moved ahead of EB-2, because demand for EB-2 grew faster. When that happens, a worker whose PERM qualifies for EB-2 can be better off in EB-3. The reverse also happens. There is no rule that holds for every year or every country, so compare the current bulletin, and the recent trend, before choosing.

Downgrading from EB-2 to EB-3

A PERM written at the EB-2 level also meets the EB-3 requirements, because a job that requires a master’s degree necessarily requires more than a bachelor’s. That allows a downgrade. If EB-3 is moving faster, the employer can file a second I-140 in the EB-3 category based on the same certified labor certification, and the worker keeps the original priority date. If the EB-3 date is current, the worker can file for adjustment of status at the same time.

Workers who already have an I-485 pending in EB-2 can sometimes ask USCIS to transfer the pending application to the new EB-3 petition rather than starting over. Keep the EB-2 petition in place; withdrawing it is rarely necessary.

Upgrading from EB-3 to EB-2

Moving up is harder. A worker in an EB-3 case can move to EB-2 only through a job that genuinely requires EB-2 qualifications, and that usually means a new PERM for a new or more senior position. The upside is that the earlier priority date from an approved EB-3 I-140 can generally be carried over to the new EB-2 petition. Workers promoted after years with the employer often fit this pattern, since experience in a substantially different earlier role can count toward the five years.

For the EB-2 side in more detail, our post on what an EB-2 visa is and how it works covers the application and timeline.

Where the National Interest Waiver fits

The EB-2 National Interest Waiver skips the job offer and the PERM entirely. A worker with an advanced degree or exceptional ability whose work has substantial merit and national importance, who is well positioned to advance it, and for whom the balance of factors favors a waiver can self-petition. It sits in the EB-2 line for visa numbers. For a worker who qualifies, an NIW can run alongside an employer’s EB-3 case as a parallel bet. Our EB-2 National Interest Waiver page explains that route.

If you are deciding whether to file in EB-3 or EB-2, or whether to downgrade a pending case, a consultation with Capitol Law Partners can compare the categories against the current Visa Bulletin for your country. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our EB-3 green card category strategy page or schedule a consultation.