Applying for an EB-2 or EB-3 green card is a complex process that requires careful preparation and compliance with U.S. Citizenship and Immigration Services (USCIS) requirements. These employment-based green card categories are designed for professionals with advanced degrees, extraordinary ability, or skilled workers, but denials are common due to various pitfalls. In 2025, with evolving immigration policies and increased scrutiny, understanding the reasons for EB-2 and EB-3 denials is critical to improving your chances of success. This guide outlines the most common reasons for denials, supported by data and practical advice to help applicants avoid costly mistakes.
Why EB-2 and EB-3 petitions are important
The EB-2 category is for professionals with advanced degrees or extraordinary ability, and often requires a PERM labor certification unless a National Interest Waiver (NIW) is sought. The EB-3 category is for skilled workers, professionals, or other workers with at least two years of experience or training. Both categories involve multiple stages, including PERM certification, Form I-140 petition, and adjustment of status (Form I-485). Errors at any stage can result in delays, Requests for Evidence (RFEs), or outright denials.
According to USCIS data, RFE rates for employment-based green cards (EB-1, EB-2, and EB-3) ranged from 24% to 35% in fiscal year 2019, indicating significant scrutiny. Denial rates, while not consistently published, vary by service center and case complexity, with some estimates suggesting that EB-2 denial rates can reach 20-30% when RFEs are inadequately addressed. In 2025, with an increased focus on fraud prevention and documentation, applicants must be proactive to avoid common pitfalls.
Common Reasons for EB-2 and EB-3 Denials
Below are the most common reasons for denial of EB-2 and EB-3 green card petitions, along with insights on how to mitigate these risks.
1. PERM Labor Certification Errors or Audit Failures
The PERM Labor Certification, required for most EB-2 and EB-3 petitions, verifies that no qualified U.S. workers are available for the job and that hiring a foreign worker won’t adversely affect U.S. wages or working conditions. Errors in this process are a leading cause of denials.
- Common Problems:
- Inaccurate Job Descriptions: Vague or overly tailored job requirements that don’t match Standard Occupational Classification (SOC) codes can trigger audits or denials. For example, specifying a bachelor’s degree when a four-year U.S. equivalent is required can result in a denial.
- Insufficient Recruitment Efforts: Employers must conduct a robust recruitment process, including job postings and advertisements. Failure to document these efforts or to demonstrate that no qualified U.S. workers applied may result in PERM denial.
- Audit Failures: The Department of Labor (DOL) may audit PERM applications and request additional documentation. In 2024, approximately 20-25% of PERM applications were audited, and failure to provide requested documentation (e.g., proof of recruitment or wage compliance) often results in denial.
- How to Avoid:
- Work with an immigration attorney to create accurate job descriptions that comply with SOC codes and DOL requirements.
- Maintain detailed records of all recruitment efforts, including dates, platforms, and applicant rejections.
- Respond promptly and thoroughly to DOL audit requests, ensuring that all documentation is accurate and complete.
2. Insufficient Proof of Qualifications
Both EB-2 and EB-3 petitions require evidence that the petitioner meets the education and experience requirements of the job.
- Common Questions:
- Non-Equivalent Degrees: For EB-2, a three-year bachelor’s degree from certain countries may not be considered equivalent to a four-year U.S. degree, resulting in a denial.
- Lack of Experience Documentation: Applicants must provide letters from former employers verifying the required work experience (e.g., two years for EB-3 professionals). Incomplete or vague letters may result in an RFE or denial.
- EB-2 NIW Specific Issues: For National Interest Waiver cases, failure to meet the three-prong test (substantial merit, well-positioned to advance, and national benefit) is a common reason for denial. Weak evidence, such as insufficient publications or testimonials, often triggers RFEs.
- How to avoid:
- Obtain a transcript evaluation to confirm degree equivalency for EB-2 petitions.
- Obtain detailed, signed letters from previous employers detailing job duties, duration, and qualifications.
- For EB-2 NIW, gather substantial evidence, including peer-reviewed publications, citations, or letters from experts, to demonstrate exceptional ability and national importance.
3. Inability to Pay Prevailing Wage
Employers must demonstrate the ability to pay the prevailing wage from the priority date until the green card is granted.
- Common Issues:
- Financial Documentation Gaps: Insufficient evidence, such as missing annual reports, tax returns, or audited financial statements, can lead to denial.
- Low Net Income or Assets: If the employer’s net income or current assets are below the proffered wage, USCIS may deny the petition unless alternative evidence (e.g., bank statements or profit/loss records) is provided.
- Startup or Small Companies: Smaller employers often struggle to prove financial stability, increasing denial risks.
- How to Avoid:
- Submit comprehensive financial documents, including tax returns, annual reports, and audited statements, showing the ability to pay.
- For smaller companies, include supplementary evidence like bank records or a financial officer’s statement (for companies with 100+ employees).
- Consult an attorney to structure the petition to highlight financial health.
4. Inadequate USCIS RFE Response
USCIS may issue an RFE when additional evidence is needed to establish eligibility. Failure to respond adequately or in a timely manner is a major cause of denials.
- Common Problems:
- Missed Deadlines: RFEs typically have a 60-90 day response window. Failure to meet this deadline will result in denial.
- Incomplete Responses: Submitting partial or unclear documentation does not address USCIS concerns and often results in denial.
- Misunderstanding RFE Requirements: Applicants may not fully understand what USCIS is requiring, especially for complex issues such as demonstrating extraordinary ability or employer financial capacity.
- How to avoid:
- Respond to RFEs promptly, ideally within the first 30 days, to allow time for corrections.
- Include a cover letter summarizing the response to each RFE request, with organized, labeled documents.
- Hire an immigration attorney to accurately interpret and respond to RFE requests.
5. Mistakes or Inconsistencies in Forms
Simple errors on forms such as I-140 or I-485 can lead to rejections or denials.
- Common Problems:
- Incorrect Information: Discrepancies between PERM, I-140, and I-485 forms (e.g., misspelled names or mismatched dates) can result in denials.
- Missing documents: Failure to include required documents such as birth certificates, translations, or Form I-693 (Medical Examination) often results in an RFE or denial.
- Uncertified Translations: Non-English documents without certified translations are a common cause of RFEs.
- How to Avoid:
- Review all forms for accuracy and consistency before submission.
- Use a checklist to ensure that all required documents, including certified translations, are included.
- Consider using services such as CitizenPath for step-by-step guidance on form preparation
6. Public Charge Concerns
USCIS evaluates whether applicants are likely to become a public charge (i.e., dependent on government assistance).
- Common Problems:
- Insufficient Affidavit of Support: For EB-2 and EB-3 petitioners filing Form I-485, an incomplete or poorly documented Form I-864 (Affidavit of Support) may raise public charge concerns.
- Insufficient Sponsor Income: If the petitioner or sponsor cannot demonstrate sufficient income or assets, USCIS may deny the petition.
- How to Avoid:
- Ensure that Form I-864 is completed accurately with sufficient evidence of financial resources (e.g., tax returns, pay stubs).
- If the sponsor’s income is insufficient, consider a joint sponsor with stronger financial resources.
7. Immigration Violations or Criminal History
Past immigration violations or criminal convictions may render an applicant inadmissible.
- Common Problems:
- Visa Overstays: Overstaying a visa or being out of status can lead to denials, especially if not disclosed or explained.
- Criminal History: Even minor offenses, if not properly documented or resolved, can result in denial.
- Fraud or Misrepresentation: Making false statements on forms constitutes immigration fraud, a serious ground for denial.
- How to avoid:
- Disclose any immigration violations or criminal history up front, with explanations and supporting documentation.
- Consult an attorney to assess inadmissibility risks and explore waivers, if applicable.
Denial statistics and trends in 2025
The following table summarizes the top denial risks and their estimated prevalence based on available data and trends observed in 2025:
| Reason for Denial | Estimated prevalence | Primary Stage Affected | Mitigation Strategy |
| PERM audit failure | 20-25% of PERM cases | PERM Certification | Robust Hiring Documentation, Attorney Review |
| Insufficient qualifications | 15-20% of denials | I-140 Petition | Credential Evaluations, Detailed Experience Letters |
| Inability to pay prevailing wage | 10-15% of denials | I-140 Petition | Comprehensive financial records |
| Inadequate RFE Response | 25-30% of RFE cases | RFE Response | Timely, organized response with attorney guidance |
| Form errors/inconsistencies | 10-15% of denials | I-140, I-485 | Thorough Form Review, Certified Translations |
| Public charge concerns | 5-10% of I-485 denials | Adjustment of Status | Strong Form I-864, Joint Sponsor if required |
| Immigration violations/criminal history | 5-8% of denials | I-140, I-485 | Full Disclosure, Legal Advice |
Note: Prevalence estimates are based on USCIS data, industry reports, and expert insights from sources such as VisaNation and Boundless. Actual rates may vary by service center and case specifics.
In 2025, USCIS continues to prioritize fraud detection and eligibility verification, with increased use of RFEs and Notices of Intent to Deny (NOIDs). The reversal of a 2018 policy that allowed denials without RFEs has given applicants more opportunities to address issues, but only if responses are thorough. In addition, processing times remain long, with I-140 petitions taking 6-12 months and I-485 adjustments taking 12-52 months, depending on the service center. Delays can exacerbate the impact of denials, making early preparation critical.
What to do if your petition is denied
If your EB-2 or EB-3 petition is denied, you have several options:
- File a motion to reopen or reconsider:
- A motion to reopen is appropriate if new evidence comes to light that could change the outcome.
- A motion to reconsider is used when you believe USCIS made a legal error. File Form I-290B within 30 days (33 if mailed).
- Appeal to the Administrative Appeals Office (AAO):
- Appeals must be filed within 30 days using Form I-290B. The AAO typically takes 6 months to review, but success rates are low unless there are clear errors.
- Refile the petition:
- If the denial was due to correctable errors (e.g., missing documents), refiling with corrections is often the fastest option. Be sure to address all issues cited in the denial notice.
- Explore alternative visa categories:
- If EB-2 eligibility is an issue, consider EB-3 or other categories such as EB-1 or H-1B. Consult an attorney to assess the feasibility.
- Consult an immigration attorney:
- An experienced attorney can analyze the denial notice, identify errors, and recommend the best course of action.
Proactive steps to avoid denials
To minimize the risk of denials in 2025, consider these strategies:
- Hire an immigration attorney: Experts can navigate complex requirements, ensure compliance, and craft compelling applications. Companies like VisaNation report higher success rates with attorney-prepared applications.
- Prepare thorough documentation: Compile all required documentation, including financial statements, transcripts, and letters of experience, prior to submission.
- Anticipate RFEs: Proactively include additional evidence for complex cases (e.g., prior visa denials or employment gaps).
- Stay abreast of policy changes: USCIS policies are evolving, and by 2025, economic and political factors may lead to increased scrutiny. Check USCIS.gov for updates.
- Take advantage of premium processing: For eligible I-140 petitions, premium processing ($2,805 in 2025) guarantees a decision within 15 days, allowing for faster resolution of issues.
Conclusion
Securing an EB-2 or EB-3 green card in 2025 requires careful planning and attention to detail. Common reasons for denial – PERM audit failures, insufficient qualifications, inadequate RFE responses, and form errors – can derail even strong applications. By understanding these pitfalls and taking proactive steps, such as working with an attorney and submitting comprehensive evidence, applicants can significantly improve their chances of success. The stakes are high, with processing times of months or years, so avoiding denials is critical to achieving permanent residency in the United States.
Primary Government Sources
- Permanent Labor Certification
URL: https://www.dol.gov/agencies/eta/foreign-labor/programs/permanent
Description: This page from the U.S. Department of Labor (DOL) explains the PERM Labor Certification process, outlining requirements for employers and the DOL’s role in certifying EB-2 and EB-3 petitions. It covers the steps for filing Form ETA-9089 and ensuring compliance with labor market tests. - Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Workers
URL: https://www.uscis.gov/forms/all-forms/petition-filing-and-processing-procedures-for-form-i-140-immigrant-petition-for-alien-workers
Description: Provided by U.S. Citizenship and Immigration Services (USCIS), this page details the filing procedures for Form I-140, including specific requirements for EB-2 and EB-3 petitions. It addresses labor certification, National Interest Waiver (NIW) criteria, and supporting documentation..
