Employment,  Employment-Based Immigration,  Lawful Permanent Residency,  PERM

An Overview of What You Need to Know About the EB-3 Category

An EB-3 is another immigrant visa preference category in the United States for employment-based permanent residency.  This is another category that allows for employers to petition for foreign workers to get their green cards.  An EB-3 is intended for “skilled workers,” “professionals,” and “other workers.” An example of a “professional” in the EB-3 category would be a profession that normally requires at least a U.S. bachelor’s degree or its equivalent.  An example of a “skilled worker” would be a position that requires at least 2 years of training.  For example, if a restaurant is looking for a specialty chef who has at least 2 years of chef experience, the employer could petition for this type of worker for a green card.

The EB-3 category requirements are not as strict as the EB-2 EB-1 or EB-2 preferences.  On the other hand, they can take longer to get approved because of the backlog.  The employee will only be able to apply for a green card once his/her priority date is current.

The priority date is the date when the labor certification process begins, not when the I-140 is filed.  This is helpful given that the labor certification takes several months (aka PERM). The waiting period or the time from the start of the application through the priority date becoming current varies by country. China and India have the longest waiting times, up to 16 years. To be eligible, USCIS analyzes an applicant’s education, skills, and work experience. Unlike the EB-1 visa, an applicant is not allowed to self-petition for the EB-3 category.  He/she must have an employer who is petitioning for him/her.

Skilled Worker Eligibility

  1. Applicant must be able to show they have a minimum of two years of job experience or training.
  2. There are no qualified individuals available in the United States for the type of work the applicant has experience in.
  3. There must be a full-time, permanent job offer and a labor certification submitted by the employer.

Professionals Eligibility

  1. Proof of a U.S. bachelor’s degree or foreign degree equivalent related to the profession. In addition, the degree is a common requirement for entry into the occupation.
  2. The profession or job does not have qualified workers available in the United States.
  3. There must be a full-time, permanent job offer and a labor certification submitted by the employer.

Unskilled Worker/Other Workers Eligibility

  1. The applicant must be capable of performing unskilled labor at the time the petition is filed by the employer. Unskilled worker means that the applicant has less than two years of training or experience. There cannot be any qualified workers available in the United States.
  2. The job cannot be temporary or seasonal.
  3. There must be a full-time, permanent job offer and a labor certification submitted by the employer.

Special Classes

There are a few additional categories of workers where the process is different. Most of the time these classes are for occupations where there is a shortage of professionals or workers in a certain industry or profession. All the classes need to have a full-time permanent job offer.

Schedule A Waivers

Schedule A Waivers are for occupations, both skilled and unskilled, where there is a shortage. In these cases, the application is exempt from a normal labor certification process. There must be evidence aligning with the Department of Labor regulations which require the job be posted for a minimum of ten consecutive days.

Schedule B Waivers

Schedule B Waivers are for occupations, both skilled and semi-skilled, where there is not a shortage of workers, but the applicant is a much better worker due to language skills, business affiliations or unique qualifications. The labor certification for these type of applications is very difficult.

Physical Therapists and Registered Nurses

Physical Therapists and Registered Nurses are exempt from having to go through the labor certification process if they meet the requirements. Physical Therapists do not need to be licensed but must meet the requirements and qualifications for a license in the state where they will be employed. Registered Nurses are those who are licensed to practice in the state they reside or where they plan to reside and are graduates from an accredited school in The United States or Canada.

How to Apply

The employer seeking the applicant’s work must file Form I-140, an Immigrant Petition for Alien Worker. The employer or company must provide information to demonstrate the ability to pay the offered wage to the applicant until the applicant is able to gain lawful permanent resident status. Usually, the employer provides an annual report, federal income tax return or a financial audit to prove the ability to pay the applicant.

Specifically, an employer must:

  1. Apply for Permanent Labor Certification from the United States Department of Labor.
    1. This entails a PERM labor certification process. The Department of Labor makes sure there are no willing qualified workers available within the United States. Also, the salary is calculated based on the job and wages of similar occupations. This is called the Prevailing Wage Request and Determination. PERM includes several steps including posting the job availability at the company’s work site, posting an advertisement in newspapers and other approved avenues, and reviewing all applications. It is very important the employer conduct and records all the steps and actions carried out during the PERM (For more information, see the PERM process blog post).
  2. Complete Form I-140, Immigrant Petition for Alien Worker and submit to USCIS with filing fees, evidence, and USCIS will process and review the application and eventually make a decision.

Steps 1 and 2 (listed above) usually take about a year to a year and a half to complete assuming there are no delays or issues. The employer can pay a premium processing fee at the I-140 stage if they would like USCIS to make a decision or issue some sort of response within 15 calendar days.  However, I would usually recommend paying the premium processing fee only if there is no backlog on the visa bulletin. For example, if a person is from China or India, it doesn’t make sense to pay the premium processing fee if the employee has to wait several years before he/she can even apply for lawful permanent residency anyway. By then, a decision on the I-140 will have been made without having to pay the premium processing fee.  The premium processing fee can be paid even after the petition is submitted, so if an employer changes its mind and wants to expedite the case, it can still be done.

Once the I-140 is approved, the applicant waits until there is a visa available (when the priority date is current) before applying for lawful permanent residency. There are only a limited number of EB-3 visas issued every year, 28.6% of the total 140,000 allotments of employment-based visas. Only 10,000 of the visas can be issued to nonskilled or other workers. 43,162 EB-3 visa petitions were filed in 2013. Currently, India’s priority date is January 1, 2009, for both skilled and unskilled workers. China’s priority date is May 1, 2007, for unskilled workers and July 1, 2014, for skilled workers. Most other countries priority dates are current, which cuts down the waiting time to obtain lawful permanent residency. If the applicant is in the U.S. when the priority date is current, the applicant files for adjustment of status. Finally, the applicant has an interview at the local USCIS office or US consulate for green card approval. The whole process can take several years to complete.

The Family of An EB-3 Visa Holder

The employee’s spouse and unmarried children under 21 years old will also be able to get their green cards through this process.

I get the privilege to work with a variety of clients in different industries with this process.  As with all employment-based immigration cases, it is very important that you get qualified legal counsel because there are a lot of steps involved and deadlines, and this is a process that our firm can guide and work with you on.