By Marta Lillo
EB-5 and EB-3 are employment-based immigrant visas that offer a green card to reside in the United States through a paid application process before U.S. Citizenship and Immigration Services (USCIS).
But the similarities end there. Immigration attorneys explain that the key difference between them is that EB-5 requires an investment while EB-3 needs sponsorship.
The EB-3 is an employment immigrant visa for skilled workers (A), professionals (B), and unskilled workers (C). They necessarily must secure a permanent job offer from a U.S. employer or sponsor to apply.
On the other hand, EB-5 is a unique category that combines investment and job creation. Unlike EB-3, it does not require a sponsor. Instead, it caters to foreign investors who are willing to commit $ 800,000 or $1.05 million, depending on the project and location.
Individuals who cannot afford the $800,000 and related expenses for an EB-5 greencard can opt for the EB-3 route if a prospective bona fide U.S. employer offers them a particular job position they can perform.
According to Manas Muratbekov, founder of Muratbekov immigration law firm, “the EB-3 is a good program because you don’t need much investment and can bring your family.” However, the challenge is finding U.S. companies willing to undergo a stringent process to bring foreign workers, he adds.
Meanwhile, the EB-5 visa usually attracts foreign nationals who do not have a sponsor employer or a specific job offer to apply to but have the necessary investment capital.
“For many there may never be a realistic prospect of finding a bona fide prospective U.S. employer willing to sponsor the applicant,” says Charles Foster, chairman of Foster US & Global Immigration Services. “For those individuals, EB-5 preference gives an applicant the opportunity to be able to qualify on his or her own right without having to depend upon a third-party would-be employer.”
Key differences between EB-3 and EB-5 employment visas
The EB-3 visa does not lead to a green card immediately and requires multiple immigration steps, while in EB-5, the USCIS grants the residency permit once it approves the first application form (I-526).
For EB-3, the bona fide U.S. employer or sponsor must obtain a PERM labor certification from the U.S. Department of Labor (DOL) after proving that no qualified U.S. workers are available for the offered job.
According to Manas MUratbekov, founder of Muratbekov immigration law firm, the PERM certificate informs the USCIS that “the DOL is happy about the fact that you are coming to work in the U.S., that you aren’t taking a job from an American who needs it. This process is used to protect the U.S. labor market from being affected negatively by foreign nationals.”
However, to get the PERM certificate, the employer must first conduct a complete recruitment search that renders no U.S. workers qualifying for the post. This process must take approximately 180 days before the company files the PERM requesting DOL approval to hire a foreign worker.
The company must provide a recruitment report detailing why neither of the U.S. candidates met the criteria. Recruitment requirements for professional jobs are more stringent than for non-professional jobs.
Only then can the business request a PERM through ETA Form 9089, which lasts between six and 18 months. This request must include a prevailing wage determination by DOL. Once the certificate is approved, the employer then submits the approved ETA Form 9089 to USCIS within 180 months (after which the PERM expires)
After that, the job-offering entity can file a Form I-140, Immigrant Petition for Alien Worker for the sponsored foreign worker. The petition must be submitted before the PERM expires. At this stage, USCIS will review the credentials of the sponsored foreign worker to determine if they meet the qualifications for the offered position and the employer’s financial capability to pay the agreed wedges. This part of the green card process can take between four and six months.
Once USCIS approves form I-140, then the EB-3 applicant and their dependent family members can apply for an adjustment of status (form I-485) before a U.S. consulate if they are still in their home country or directly to USCIS if they live in the U.S.
“The EB-3 preference requires that the prospective employer first prove the unavailability of any qualified, willing, and able U.S. worker through the labor certification process, which takes at least a year or longer before an individual in the United States would be eligible to file for adjustment of status assuming a visa number is available,” says Foster.
Meanwhile, for EB-5, the most demanding steps for investors are providing proof of legal sources of funds and meeting regulations. However, they do not have to wait for an offer and self-sponsor when applying through a Regional Center project or a direct investment.
Convenience of the EB-5 or EB-3 visas depends on the applicant’s circumstances
The timing for either visa also varies depending on demand and backlogs for specific countries, such as the case of EB-5 (China and India).
“The law provides that 28.6% of the worldwide level of 140,000 plus unused EB-1 and EB-2 are allocated to this category [EB-3],” says Bernard Wolfsdor, managing partner of WR immigration. “The EB-3 category is backlogged to November 2022, which in reality means a wait of 3-4 years but for certain countries such as China and India, the wait is much longer. For Chinese, the estimate is as long as 8-10 years, and for persons chargeable to India, it’s an absurd 20+ year wait.”
Foster adds that EB-5 is more convenient for applicants already physically in the U.S. as it “ gives those individuals the right to almost immediately apply for adjustment of status and to obtain work authorization and travel document, since visa numbers generally are available for all nationalities. This is particularly important for those applicants born in India where the backlog under the EB-3 preference could be 30 years or even longer.”
EB-3 can be an option for a foreign worker in the U.S. on an H-1B work visa if laid off. However, there’s a caveat. “They have to find a new employer within 60 days and start the entire process all over again. For many Indians and Chinese this trap them in the same job with the same employer,” Wolfsdorf explains.
“EB-5 is effectively a self-petition path to being a ‘free agent,” the immigration attorney adds. “Presently all countries, including China and India, can file EB-5 investor cases and get 5-year work and travel permits in a few months, and the conditional green card in a year or two. For those who can afford to invest, this is a ‘once in a lifetime’ opportunity.”
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
