Skilled, professional, or other worker with a job offer in the United States?

INA § 203(b)(3) establishes the EB-3 as the third preference, below EB-1 (first) and EB-2 (second). In the hierarchy of employment-based green cards, the EB-3 receives visas only after EB-1 and EB-2 have been served, but in practice, numbers are allocated simultaneously and each category receives approximately 28.6% of the annual total of 140,000 employment visas (roughly 40,000 per category).

The central difference between EB-2 and EB-3 is the educational requirement: the EB-2 requires a master’s degree (or bachelor’s plus 5 years of progressive experience), while the EB-3 professional requires only a bachelor’s degree. For positions that could be classified under either category, the choice depends on the queue wait time. Historically, the EB-2 had a shorter queue, but this varies by nationality and fiscal year.

The possibility of an “EB-3 to EB-2 upgrade” is a legitimate strategy. If the worker obtains a master’s degree or accumulates five years of progressive experience after the EB-3 filing, the employer can initiate a new PERM process for EB-2 classification. The new PERM generates a new priority date, not retaining the previous one. The additional cost and time may be worthwhile if the EB-2 queue is significantly shorter.

The Department of Labor’s Schedule A (20 CFR § 656.5) lists pre-certified occupations that do not require the full PERM process. For the EB-3, the most relevant are: registered nurses (Group I) and physical therapists (Group I). Workers in these occupations can skip the PERM step and proceed directly to the I-140, saving 12-18 months in the process. The employer still must demonstrate that the position is permanent and full-time.

Form I-140 (Immigrant Petition for Alien Workers) is the petition the employer submits to USCIS to classify the worker under the EB-3 category. The filing fee is $715 (2025). The employer must demonstrate: (1) that the PERM was approved and is still valid (180-day validity); (2) that the company has the financial capacity to pay the prevailing wage; and (3) that the worker meets the position’s requirements.

Capacity to pay is evaluated by USCIS from the year of the priority date through the present. The employer demonstrates this with: (a) tax returns showing net income equal to or greater than the prevailing wage; (b) sufficient net current assets; or (c) evidence that the worker is already being paid the prevailing wage. For large companies (100+ employees), demonstrating capacity is generally straightforward. For small businesses, scrutiny is greater.

The EB-3 priority date is the date the PERM (ETA-9089) was filed, not the date the I-140 was filed. This date determines the worker’s place in the green card queue. The earlier the PERM was submitted, the older the priority date and the faster the worker advances in the queue. This is why starting the PERM as early as possible is strategically crucial, as every month of delay is one more month of waiting.

The I-140 can be processed in regular mode (6-12 months) or premium processing (15 business days for an additional $2,805). Premium processing may be paid by the employer or the worker, without restriction as with PERM. For applicants with a current priority date, premium processing allows submitting the I-485 (adjustment of status) more quickly after I-140 approval.

The most effective strategy for the EB-3 is timing: start the PERM as early as possible. Every month of delay is one more month of waiting for the priority date. If the employer is willing to sponsor, begin immediately – do not wait for a promotion, raise, or “perfect moment.” The PERM takes 18-30 months; the I-140 takes 6-12 months (or 15 days with premium). The total EB-3 timeline is 3-5 years.

Dual filing (EB-2 and EB-3 simultaneously) is a legitimate strategy when the worker qualifies for both categories. The employer submits two PERMs for the same position or for different positions, one classified as EB-2 and the other as EB-3. The worker uses whichever priority date moves first on the Visa Bulletin. The cost is doubled, but the flexibility can be worth it.

For those already in the EB-3 with a long queue, upgrading to EB-2 requires: (1) the worker now qualifies for EB-2 (has obtained a master’s degree or has accumulated a bachelor’s plus 5 years of progressive experience); (2) the employer initiates a new PERM with EB-2 requirements; (3) a new I-140 is submitted. The new priority date is the date of the new PERM, not retaining the previous one. The original EB-3 remains active as a backup.

For healthcare professionals (nurses, physical therapists), Schedule A eliminates the PERM and can shorten the process by 12-18 months. If you are a registered nurse who has passed the NCLEX or a physical therapist with a U.S. license, explore Schedule A before starting a regular PERM. The attorney should assess whether the position and your qualifications fit the requirements of 20 CFR § 656.5.