There has been a lot of discussion recently concerning immigration, and most of it is steered towards illegal immigration and employment of illegal aliens. One may often wonder why don't illegal aliens just go the legal route? The answer is because there are simply not enough options to enter this country if one is not highly educated or specially experienced or has family in the US. This post will briefly discuss the different employment visa categories and standards under which aliens are able to apply.

There are four employment-based (or EB) categories. These are EB-1, EB-2, EB-3, EB-4 and finally EB-5. The category an applicant falls under will determine what procedures and evidence he/she will have to provide to the government. These are not the only employment-based options aliens have (for example, temporary work visas), but they are the most common and heavily applied for. This article will only discuss the first three categories.

EB-1

This is the First Preference category and is reserved only for: 1) aliens with extraordinary abilities; 2) outstanding professors or researchers; and 3) multinational managers or executives.

There is a high standard set for an alien to apply under the EB-1 category. The first two subsets of EB-1 require evidence that can support the applicant's reputation as outstanding or extraordinary. This includes recognized prizes in their field, published articles, original scientific or scholarly research, evidence of high salary and many others. The third subset only requires a person to hold a managerial or executive position for at least three years and is seeking to continue that position for the same company, but now in the US.

The truth is that very few employment-based applicants are eligible for EB-1. The standards are high because once they are met, the process is streamlined when compared to the next EB categories.

EB-2 and EB-3

Unlike EB-1, many more applicants will be eligible under the EB-2, second preference category. This category requires the applicant to have an advanced degree or demonstrate exceptional (not extraordinary) ability. EB-3 is eligible for skilled workers, professionals with baccalaureate degree and certain unskilled workers.

There are many small nuances, such as whether a foreign degree will be recognized or the difference between "exceptional" and "extraordinary" ability. There are also nuances in the type of job the applicant has been offered.

The main difference with EB-2 and EB-3 however is that approval requires an approved Labor Condition Application (LCA) which is given by the Department of Labor (DOL). The DOL determines from the many things from the LCA, such as whether the applying alien is replacing US workers and if the employer is paying a fair wage. This means that applicants qualifying under EB-2 must have a job offer before applying (unlike EB-1).

Shawn Hu is an Immigration & Immigration Defense attorney in Chicago. He helps people and businesses file visa applications, fight deportation proceedings, and everything in between.

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