EB-1C vs EB-2 and EB-3: Which Should Your Employer File?

An EB-1C and an EB-2 or EB-3 case ask the employer to prove different facts. The EB-1C turns on the manager’s record inside the company group, and the EB-2 or EB-3 turns on the job and the US labor market.

The EB-1C requirements start with a year of managerial or executive work abroad for a company related to the US employer. The EB-2 and EB-3 ask for no work abroad at all; their requirements are the minimum education and experience of the job the employer offers.

PERM labor certification is the Department of Labor’s approval to fill a job with a foreign worker, given after recruitment turns up no qualified US worker. An EB-1C goes to USCIS without it. In its place, the regulation asks for a written statement from the employer that describes the managerial or executive duties.

The PERM process starts with a prevailing wage request, in which the department sets the minimum pay for the job in that area. The employer then advertises the job under the department’s rules and posts a notice of the filing at the workplace. If no qualified applicant comes forward, the employer files the labor certification application, and the department reviews it before certifying it.

For a manager’s job, the employer advertises that role itself, and one qualified US applicant ends the labor certification for it, whatever the employee’s own record shows. The department can also audit a case and ask the employer for its recruitment records.

The offered salary has to be at least the prevailing wage. An EB-1C has no wage floor of that kind. The employer only shows it can pay the salary it offers, from the priority date until the green card.

The EB-2 and EB-3 go through Department of Labor stages that an EB-1C never has, and those stages make most of the processing time difference. An EB-1C goes to USCIS as soon as the employer’s evidence is ready. An EB-2 or EB-3 case first passes the PERM wage request, recruitment and review, and only then reaches USCIS with the I-140.

The first stage of the EB-1C process is the record, and it takes as long as the two companies need to produce it. It includes corporate documents from both sides, organization charts, payroll for the staff below the manager, and letters that describe the duties at each company.

An EB-1C waits on the EB-1 dates in the State Department’s monthly Visa Bulletin. Those dates usually sit ahead of the EB-2 and EB-3 dates that a PERM-based case waits on. An approved petition leads to a green card only when the date for its category and the employee’s country of birth reaches the petition’s priority date. That priority date is the I-140 filing date on an EB-1C and the labor certification filing date on a PERM case.

Employees born in India and China usually wait longest in all three categories. More people born there apply each year than the per-country cap of 7% allows. For India, the EB-2 and EB-3 waits have run years longer than the EB-1 wait, so the route can move the green card date by years. The bulletin column follows the employee’s country of birth, whatever passport the employee holds.

For employees born in India or China, the EB-1 date decides when an EB-1C green card can be approved. It can move in a month when the EB-2 and EB-3 dates stand still.

An employee with an approved EB-2 or EB-3 petition keeps that priority date when the employer later files an EB-1C. The rule is 8 CFR 204.5(e). Once a petition in any of the first three employment categories is approved, its date carries to every later petition in those categories. If the employee holds several approved petitions, the oldest date counts.

That date is then checked against the EB-1 dates for the employee’s country of birth. If the EB-1 date for India has already reached a priority date set years earlier in EB-2 or EB-3, USCIS can approve the green card without a new wait.

USCIS still decides the EB-1C on the manager’s role, and the old date counts only once it approves the new petition. An EB-2 or EB-3 petition that is still pending passes on nothing yet, and a denied petition never set a date.

Revocation takes the date away when USCIS finds fraud or a material error, or when the labor certification itself is revoked or invalidated. An employer that later withdraws the approved EB-2 or EB-3 petition doesn’t take the date with it.

Both cases can run at the same time for the same employee, and no rule makes the employer choose one. The two are separate petitions with their own fees and decisions, and a denial of one doesn’t touch the other.

An EB-2 or EB-3 case run alongside gives a manager a second route when the evidence for the EB-1C role is thin. If the EB-1C is denied, that case continues with the date of its labor certification filing. If both petitions are approved, the earlier of the two dates applies.

A pending green card application rests on one petition at a time. If the I-485 was filed on one petition and the other is approved later, the employee can ask USCIS in writing to move the application onto it. That generally needs no new I-485 and no new fee. USCIS decides the request at its discretion, and it has to arrive while the first petition is still in place.

A company owner can be the employee on any of the three. On an EB-2 or EB-3, the employer then has to prove in PERM that the job was open to any US worker.

On the EB-1C, the petitioner has to be a US corporation or another legal entity, and a corporation with one owner can file for that owner. A sole proprietorship can’t, because the business and the owner are legally the same person. The US company and the company abroad can be related through the same owners. The owner’s US job still has to be executive, with staff who do the day-to-day work.

For an EB-2 or EB-3, a company the employee partly owns can still sponsor the green card, but the Department of Labor checks the case closely. The same goes for an employee related to the owners or one of only a few employees. An audit can then ask for the ownership records, how much each owner invested and who makes the hiring decision. The employee can’t take part in interviewing the US applicants.

In practice that proof is hard to make, and it slows the case. On an EB-1C, the employer doesn’t have to show the job was open to US workers. Ownership matters there only for the tie between the two companies.

Until the green card application has been pending for 180 days, each case stays with what it was filed on. An EB-1C stays with the US employer and its tie to the company abroad. An EB-2 or EB-3 case stays with the certified job at the sponsoring employer.

For an EB-1C, the two companies have to stay related until USCIS decides the petition. Both have to keep doing business until the green card is granted. A sale or closure of the company abroad can end the case. A move to another company in the same group needs a new petition from that company, which can keep the date of an approved earlier one.

For an EB-2 or EB-3, a new employer has to start a new labor certification. The exception is a successor in interest, a company that took over the sponsor’s business through a purchase or a merger.

After 180 days, both routes let the employee move to a job in the same or a similar occupation and keep the case. The employee confirms the new job on Form I-485 Supplement J. On an EB-1C, USCIS compares the new job with the managerial or executive role the petition was built on.

Under 20 CFR 656.12, the labor certification is the employer’s expense. The employer can’t take money from the employee for any part of it, including its own lawyer and the job ads. The employee can still pay for a lawyer of their own. That rule puts most of the PERM cost on the employer, while the I-140 and green card fees can be paid by either side.

The EB-1C has no rule of that kind. The employer files the petition and can pay for all of it, or share the cost with the employee as they agree. The I-140 filing fee and the premium processing fee are the same amounts on both routes.

The employer should file the EB-1C when the employee and the company meet its conditions. An EB-2 or EB-3 through PERM fits when they don’t, and it can also run beside the EB-1C as a second route. For a manager who qualifies for both routes, these facts decide it: