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Missed the H1B Deadline? An EB2 or EB3 visa might actually be the better option for your skilled immigrant workers anyway.

You missed the March 18 Deadline for H1Bs. Before you resign yourself to waiting until next year, you should consider if an EB2 or EB3 Visa may actually be a better option for your company and the sponsored immigrant employee.

The H1B visa, EB2 visa, and EB3 visa are all categories of employment-based immigration that allow US employers to hire foreign workers in specialty occupations. If you missed the deadline for this fiscal year’s H1B visas, the EB2 and EB3 visas might be faster than waiting until next year.  Here are some key differences between these visa categories:

Educational requirements

The H1B visa requires a minimum of a bachelor’s degree or its equivalent, while the EB2 visa requires an advanced degree or exceptional ability in the sciences, arts, or business. The EB3 visa has different requirements depending on the type of worker.  It may or may not require a degree depending on the type of job position.

Numerical limits

The H1B visa is subject to an annual numerical limit of 65,000 visas, plus an additional 20,000 visas for workers with advanced degrees from US universities. The EB2 visa and EB3 visa are subject to annual numerical limits of 40,040 visas per year, plus any unused visas from other employment-based categories.

Processing times

The processing times for the H1B visa are generally shorter than the processing times for the EB2 and EB3 visas. The H1B visa can be processed in a matter of months, while the EB2 and EB3 visas can take several months or even years due to the annual numerical limits and backlog of applications.  

Job requirements

The H1B visa requires the foreign worker to be employed in a specialty occupation that requires at least a bachelor’s degree or its equivalent. The EB2 visa and EB3 visa have different requirements depending on the type of worker, but generally an EB2 requires advanced education or training in the field.  An EB3 visa may not depending on the position.

Path to permanent residency

The H1B visa does not provide a direct path to permanent residency (green card), but the visa holder may be eligible to apply for a green card through other employment-based categories. The EB2 visa and EB3 visa may provide a more direct path to permanent residency, as these visa categories are part of the employment-based immigration system.

The key difference between EB2 and EB3 visas is the level of education or experience required for the job position. Here are some details about each visa category:

EB2 Visa

The EB2 visa is a category of employment-based immigration that is designed for professionals with advanced degrees or exceptional ability in the sciences, arts, or business. To qualify for an EB2 visa, a foreign worker must have either:

  • A master’s degree or higher, or a bachelor’s degree plus five years of progressive experience in their field; or
  • Exceptional ability in their field, which is demonstrated by meeting certain criteria, such as a degree of expertise significantly above that normally encountered in their field.

EB3 Visa

The EB3 visa is also a category of employment-based immigration that is designed for skilled workers, professionals, and other workers. The requirements for an EB3 visa vary depending on the type of worker:

  • Skilled workers: To qualify for an EB3 visa as a skilled worker, a foreign worker must have at least two years of experience or training in their field.
  • Professionals: To qualify for an EB3 visa as a professional, a foreign worker must have a bachelor’s degree or its equivalent in their field.
  • Other workers: To qualify for an EB3 visa as other worker, a foreign worker must be able to perform unskilled labor that requires less than two years of training or experience.

Overall, the EB2 visa requires a higher level of education or experience than the EB3 visa, but the specific requirements will depend on the job position and the qualifications of the foreign worker. It’s important for US employers and foreign workers to work with an experienced immigration attorney to determine the best visa option and navigate the application process.

The decision of which visa to apply for will depend on the specific needs of the US employer and the qualifications of the foreign worker. It’s important for US employers and foreign workers to work with an experienced immigration attorney to determine the best visa option and navigate the application process.  Fillmore Spencer’s Immigration Attorneys can help you make the best decision for your business and prospective immigrant employees, whether that means waiting until next fiscal year for an H1B Visa or pivoting to an EB2 or EB3.  Call Laura Lui today for a consultation to consider your company’s specific situation and needs.

T. Laura Lui is a Partner with Fillmore Spencer and leads the Immigration Practice.  A child of immigrants herself, Laura leads the Immigration practice at Fillmore Spencer with empathy and excellence.  Laura works with American employers to select the right paths to fill their skilled and unskilled labor needs through legal immigration, filling gaps in the workforce and expanding access to the American Dream.  Over her 25 years of legal service, Laura has helped more than 2500 immigrants find the right methods to enter and work legally in the United States.

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