Two of the most coveted visas for non-U.S. citizens hoping to enter the United States as working professionals are the H-1B and EB-2. So, what are these visas and how do they differ from each other?
For starters, the H-1B visa is a nonimmigrant visa. This means that the function of the visa is not to embark on an immigration pathway to the U.S., but rather to attain legal work authorization for a temporary duration. By contrast, the EB-2 visa is an immigrant visa, which means that it goes hand-in-hand with permanent residency in the United States. Another key difference lies in the requirements for approval: the H-1B visa only requires a bachelor’s degree, whereas the EB-2 requires an advanced degree or a bachelor’s plus five years of progressive work experience.
Despite the differences between these two visa categories, they are intrinsically interlinked. The H-1B visa allows for dual intent, which means that applicants may take steps towards obtaining U.S. permanent residence even though they are in nonimmigrant status. (By contrast, many nonimmigrant visa holders are not allowed to intend to remain as a permanent immigrant in the United States, and if any such intention is discovered or suspected by U.S. immigration officials, the visa is denied.) It is therefore common for foreign professionals to first get their H-1B visa and then proceed to apply for an EB-2 visa, often while in the United States still under H-1B status.
The trajectory from H-1B to EB-2 is due to several related reasons. First, the H-1B visa has a much shorter processing time than the EB-2 visa: an average of 3-5 months for the former, compared to an average of 18 months to many years for the latter (depending on the applicant’s country of origin, especially if Indian — more on that below). Second, U.S. employers are more willing to sponsor an H-1B visa since, unlike the EB-2 visa, it does not require proving to the Department of Labor that there are no qualified U.S. workers to take the job. Third, as mentioned, the degree/work requirements for the H-1B are lower; it would therefore, for instance, make sense for a foreign national who only has a bachelor’s to stay in the U.S. on an H-1B visa while gaining five years of progressive work experience, and then proceed to apply for an EB-2 after becoming eligible.
Having given an overview of the differences (and interconnection) of the H-1B and EB-2 visas, here is a detailed breakdown of key facts to know about both visas:
H-1B VISA:
- Requirements
The H-1B visa applicant must have a bachelor’s degree from an accredited U.S. institution or foreign equivalent. The applicant must also first have a U.S. employer sponsoring the petition, offering the applicant a job that can only be performed by an individual with specialized knowledge (which in practice generally translates to a bachelor’s in the related field of work).
- Fees
Initial registration for the H-1B lottery costs $10. If the applicant is selected for an H-1B visa, the employer proceeds to pay $780 to file Form I-129 (Petition for Nonimmigrant Worker), or $460 in the case of small employers and nonprofits.
- Timeline
Assuming a prospective H-1B applicant is eligible for the visa and has a valid job offer from a U.S. sponsor, the following timeline is what should roughly be expected prior to each fiscal year:
- March: The H-1B visa lottery registration period, where employers and their legal representatives can register online for each prospective worker. The duration of the lottery is typically 14 calendar days, but varies slightly each year. For the most recent lottery, this came out to March 6–March 22.
- April 1–June 30: The H-1B visa filing window for the registrations selected in the lottery.
- June 30-October 1: The processing window for when USCIS begins processing submitted petitions for a potential start date of October 1 (which is the earliest possible start date for an H-1B visa).
- Nonimmigrant visa
The H-1B visa has a limited duration of three years, which can be extended for an additional three years — i.e., a maximum total of six years. However, because the visa is dual intent, someone on an H-1B visa may apply for an immigrant visa such as an EB-2.
- Dependent family members may escort principal applicant
If an H-1B visa is approved, the applicant’s spouse and children under 21 are also permitted to enter the U.S under the H-4 visa. This visa duration is tied to the duration of the principal H-1B, and is likewise nonimmigrant. Unlike the H-1B visa, the H-4 visa does not generally allow for work authorization.
- Numeric caps/visa lottery
Under U.S. law, there are only 85,000 H-1B visas allocated for each fiscal year, 20,000 of which are reserved for applicants who have an advanced degree from a U.S. institution or foreign equivalent. Because each year the amount of H-1B applicants far exceeds the number of visas available, there is what is called an “H-1B visa lottery.” Essentially, the way it works is that H-1B applicants with an advanced degree get placed in an initial lottery from which 20,000 applicants are selected; any unselected applicants are then placed into the general lottery for the remaining 65,000 visas. Thus, an H-1B applicant with an advanced degree is at an advantage because such an applicant has two windows to be selected. For Fiscal Year 2025, the U.S. USCIS received approximately 442,000 submissions for the H-1B lottery, and selected 114,017 registrations (USCIS regularly overselects above the 85,000 cap in order to account for potential misfilings, duplicates, job loss, etc.). This means that there is an approximately 25% chance of selection based on data from the most recent fiscal year.
- Exemptions to numeric cap/filing window
Universities and related nonprofit entities, nonprofit research organizations and government research organizations sponsoring an H-1B position have no numeric limitations . These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit.
EB-2 VISA:
- Requirements
The EB-2 visa applicant must hold an advanced degree or a bachelor’s plus five years of progressive work experience, or, in the alternative, show that they have exceptional ability. The applicant must have a U.S.-based sponsoring employer that is offering a valid job requiring the advanced degree/exceptional ability.
If an applicant files for an EB-2 visa under the “exceptional ability” category, the applicant must show at least three of the following criteria:
- Certificate from an institution of learning relating to the applicant’s area of exceptional ability;
- Letters from applicant’s current or former employers documenting at least 10 years of full-time experience in the relevant occupation;
- License showing applicant’s authorization to practice the relevant occupation;
- Evidence of salary for services that demonstrates exceptional ability;
- Membership in a professional association(s);
- Recognition for applicant’s achievements and significant contributions to the relevant industry by applicant’s peers, government entities, or professional/business organizations;
- Other comparable evidence of eligibility.
The sponsoring employer must also generally file a labor certification with the Department of Labor showing that there are no qualified U.S. workers to take the job. This is not required for the “exceptional ability” category, however.
- Fees
Fees are associated with two prongs of the EB-2 visa petition: Form I-140 (the employment request the sponsor files on the employee’s behalf), and Form I-485 (the form filed by the employee to adjust status, i.e., attain a “green card”). For Form-140, there is a general filing fee of $715, and a recently-added fee of $600 meant to fund the asylum program (this fee is reduced to $300 for small employers, and is $0 for nonprofits). For the Form-485, there is a general filing fee of $1440.
- Timeline
The EB-2 visa does not require any particular window to file throughout a given year. However, for certain nationalities (particularly Indians, as will be further explained below), there is an extensive backlog when it comes to getting a visa in this category. Regardless of final visa allocation, the processing time for the EB-2 visa is also extensive: an average of 18 months.
- Immigrant visa
The EB-2 visa is an immigrant visa, which means that an individual who holds it is considered a permanent resident. As such, EB-2 visas must apply for adjustment of status (aka “a green card”) with their application.
- Dependent family may escort principal applicant
If an EB-2 visa is approved, the applicant’s spouse and children under 21 are also permitted to enter the U.S under the E-21 and E-22 visa categories, respectively. This visa duration is unlimited, since the principal application is tied to a green card – which the entire family receives. Moreover, the spouse and children of the principal applicant may apply for work authorization while their visas are being processed.
- Numeric Caps (particularly for Indian nationals)
By U.S. law, there are only 40,000 EB-2 visas made available each fiscal year. Furthermore, unlike the H-1B visa, the applicant’s nationality matters when it comes to odds of selection. Under this additional “country cap,” no single country may claim over 7% (or 2,800) of the 40,000 available visas. This is particularly relevant for Indian nationals, since Indian nationals make up 90% of approved I-140 petitions yet compete for 7% of the connected EB-2 visas. Due to this, there is severe retrogression/backlog of EB-2 visas for Indian nationals, with USCIS data suggesting that new Indian applicants could face a wait of over 12 years until a green card becomes available. (Chinese nationals also face retrogression, though not nearly to the same degree; prospective EB-2 visa applicants can see wait times based on nationality on the most recent USCIS visa bulletin.)
- National Interest Waiver
EB-2 visa applicants who can demonstrate that their proposed endeavor would be in the U.S.’s national interest need not have a job offer (and thus need not have a PERM certification either). This option may also be a silver lining for Indian nationals who are subject to impossible wait times for EB-2 visas, since the national interest waiver is not subject to any annual numeric caps. The endeavors that qualify for a national interest waiver are not defined by statute, but USCIS considers the following factors:
- Whether the proposed endeavor has both substantial merit and national importance;
- Whether the applicant is well positioned to advance the proposed endeavor;
- Whether, on balance, it would be beneficial to the United States to waive the requirements of a job offer/labor certification.
CONCLUSION:
In closing, it is generally more sensical for foreign professionals to first apply for an H-1B nonimmigrant visa and then later apply for an EB-2 immigrant visa. Moreover, as a matter of practice, the vast majority of EB-2 visa sponsors are companies sponsoring employees already working for them under another status (often H-1B). For Indian nationals in particular, aiming for an H-1B is essentially the only viable option because there is such a tremendous backlog of EB-2 visas (and although the national interest waiver is an option for Indian nationals, it is more difficult to qualify for). The good news is that H-1B status can be extended indefinitely beyond the 6-year maximum if the foreign national has an approved I-140 petition and there is no available immigration visa number. Therefore, based on the current USCIS visa bulletin, Indian nationals in H-1B status who have received an approved I-140 petition should be able to indefinitely renew their status.
