May 11 2020
Almost every week, someone asks me, “Is my application EB-2 or EB-3?” For most employment-based applicants born in India or China, one of the most important outcomes is to have their applications qualify for EB-2.
EB-2 and EB-3 are the two categories for PERM-based green card processes. EB-2 means an applicant is being sponsored for a role which requires an advanced degree (Master’s degree or higher) or a Bachelor’s degree followed by 5 years of work experience. This is the “higher” of the two classifications and traditionally provides a faster path to a green card than the EB-3 classification – at least for applicants born in India and China. This is why most applicants from these two countries have always pushed for EB-2.
However, for applicants born in China, an EB-3 application may not be so bad as it can sometimes be faster than EB-2. Here is a look at the State Department’s Visa Bulletin going back 2 years:
China EB-2 Cut-Off Date (Final Action) China EB-3 Cut-Off Date (Final Action) May 2020 10/01/2015 05/15/2016 April 2020 09/01/2015 04/15/2016 March 2020 08/01/2016 03/01/2017 February 2020 07/15/2015 01/01/2016 January 2020 07/01/2015 12/01/2015 December 2019 06/22/2015 11/01/2015 November 2019 03/15/2015 11/01/2015 October 2019 01/01/2015 11/01/2015 September 2019 01/01/2017 01/01/2014 August 2019 01/01/2017 07/01/2016 July 2019 11/01/2016 01/01/2016 June 2019 11/01/2016 01/01/2016 May 2019 05/15/2016 08/22/2015 April 2019 04/01/2016 08/01/2015 March 2019 01/01/2016 07/08/2015 February 2019 10/01/2015 07/01/2015 January 2019 08/01/2015 06/08/2015 December 2018 07/01/2015 06/08/2015 November 2018 05/15/2015 06/01/2015 October 2018 04/01/2015 06/01/2015 September 2018 01/01/2013 11/01/2014 August 2018 03/01/2015 07/01/2014 July 2018 01/01/2015 01/01/2013 June 2018 09/01/2014 06/01/2015 May 2018 09/01/2014 06/01/2015
As you can see, over the last 2 years, about half the time EB-3 had a later cut-off than EB-2. Since the cut-off date determines when an applicant can file a green card application (either an I-485 application for adjustment of status with USCIS or an immigrant visa application through Dept. of State), at certain times it can be advantageous to be in the EB-3 classification. (With the Visa Bulletin, the earlier the cut-off date, the longer the wait to file a green card application.)
The beauty of it is that applicants whose PERM applications qualify for EB-2 can choose to downgrade to EB-3 in order to file an I-485 application with USCIS. Even if an applicant already has an approved PERM and an EB-2 I-140 approval, he or she can always file another I-140 petition and request the EB-3 classification in order to proceed with the I-485 filing.
In October 2019, we received an approved PERM for an employee who was born in China. Although the PERM qualified for EB-2, we gave the employee the choice of filing an EB-3 I-140 petition and also a concurrent I-485 application for adjustment of status (AOS) based on a priority date from a previous I-140 approval. As you know, there are many advantages of having a filed AOS, including an EAD and AC21 job portability where an applicant may be able to change jobs after the I-140 is approved and the AOS has been pending for 180 days. This particular employee politely declined and wanted to wait for the EB-2 date to become current. As of the end of April 2020 this employee is still waiting. In putting together this chart of the Visa Bulletin dates for China, I noticed that if this employee had filed his AOS back in October 2019, based on USCIS processing times and immigrant visa number availability over the past 4-5 months, he probably would have received his green card by now.
So the moral of the story is – don’t be afraid to process in the EB-3 category. It may be faster than EB-2 at times (for applicants born in China) and you know what they say about a bird in the hand…. From our perspective, the actual green card looks the same regardless of whether it was issued based on EB-2 or EB-3.
To speak to an attorney about the PERM process or any other employment-based green card matters, please contact us here. Our experienced team can advise you on the quickest way to process your case.