A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, January 18, 2019

EB-2 vs. EB-3: Indian Nationals Should Reconsider

For many years, Indian-born immigrant visa applicants believe that filing a petition under the Second Employment visa category would give them an edge. Yes, for many years, India EB-2 was ahead of EB-3 in the monthly Visa Bulletins published by the U.S. State Department.  However, as more individuals possess advanced degrees and accumulate work experiences, the number of applicants for senior-level positions have also increased over the years, and so has the demand for visas in the EB-2 categories. For the first time ever, EB-3 India has a better cutoff date than EB-2 India in February 2019's Visas Bulletin.  See, https://myimmigrationlawyer.blogspot.com/2019/01/february-2019-visa-bulletin-family-and.html

This trend may continue in the near term.  The lesson to learn is that applicants should not insist on or "push for" filings under a particular visa category.  Applicants with advanced degrees and/or many years of experience somehow believe that they are entitled to a particular visa category.  The law is very clear - the educational and other requirements in the foreign labor application is based on the actual minimum requirements of the job opening itself, not the qualifications of the applicant.  This may seem contradictory to real-world recruiting, where employers generally try to hire the most qualified job applicants.  Unless and until the law changes, it is wise to adhere to all legal requirements rather than chasing "past performance" of the Visa Bulletin. 

Because applicants who qualify under the EB-2 visa category generally also qualify under the EB-3 category, there is mechanism for EB-2 applicants to "downgrade" their visa petitions to EB-3. This downgrading has been pursued by many Chinese applicants in the past few years to speed up their immigration process.  If India EB-3 continues to surpass India EB-2, qualified Indian applicants should also consider filing a new visa petition to downgrade their application to EB-3 to shorten the waiting time. 

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