When it comes to employment-based green cards, there are times when a worker could qualify for either an EB-2 or EB-3 visa. This is due in great part to the fact that most workers could fall into the EB-3 category, as this employment third preference category refers to both skilled and unskilled workers, as well as professionals. The EB-2 visa is available to workers who hold an advanced degree or experience.

So when an employer fills out Form I-40 to sponsor a worker who qualifies for either visa, which visa category should he or she put down? That will depend on a couple circumstances and considerations.

Generally speaking, if a worker qualifies for an EB-2 visa, this is better, as the wait time for this visa is much shorter. The wait for an EB-3 visa is often years longer. But there are significant exceptions. If a worker with an advanced degree comes from India or China, the line for the EB-2 visa could be the same if not longer than for the EB-3 visa. You can get an idea of what the current wait times are for both employment second preference and third preference categories on the Visa Bulletin, published on the Department of State's website with monthly updates.

However, just because the difference in wait times is stark for a worker's category, that does not mean you should go ahead and select an EB-2 visa for a worker. To establish eligibility for this visa can be tricky. How do you prove that the worker has earned an advanced degree? Is their foreign degree up to the standards of a similar degree in the United States? Or if a worker is qualifying based on experience, is their expertise in exactly the right line of work?

For sound advice on how to proceed in this complex process, to learn about the labor certification process for both EB-2 and EB-3 workers, and more, don't hesitate to consult an immigration lawyer as soon as possible!