EB3 Visa: Professional Workers

The EB3 employment based green card is for professionals who hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree. Members of the professions include, but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. It also includes any occupation for which a US baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.

The EB3 employment based green card is also for "skilled workers" defined as a person, who at the time of petitioning, is capable of performing s

killed labor, requiring at least 2 years training or experience, not of a temporary or seasonal nature, and for which there are no qualified workers available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.

The EB3 employment based green card is also for " other workers" defined as a person who is to perform unskilled labor, requiring less than two years training, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

In order to obtain permanent residency through the EB3 category, the applicant must have an employer willing to sponsor him or her through labor certification or PERM. The applicant does not have to be employed when labor certification/PERM is filed. A job offer is sufficient. Labor certification/PERM is the process whereby, the US government determines whether qualified US workers can fill the open position. Once the labor certification is approved, the employer may sponsor the applicant for permanent residency.

The EB3 process is as follows:

Step 1-Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual;
Step 2-Immigrant Petition (I-140): Once the labor certification application is approved, the company files an immigrant petition with the USCIS; and then
Step 3-The employee would file an Adjustment of Status application to adjust your status to that of permanent resident (if in the U.S.) or consular process for an immigrant visa at a U.S. consulate (if outside of the U.S.).

STEP 1: The Labor Certification Application

What is a labor certification?

A labor certification is an official government finding that (1) no U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position; and (2) the individual’s employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers.

How does a company get a labor certification?

The company files a labor certification application (Form ETA 750) with the state employment security agency (SESA) of the state in which the job is located. The state agency completes preliminary processing of the application, and then forwards it to the appropriate regional office of DOL. The DOL regional office issues the labor certification.

What goes into a labor certification application?

The application form, Form ETA 750, has two parts. The first part (750 Part A) is a formal offer of employment. The offer of employment contains specific information about the job, including a description of the duties and responsibilities and the minimum qualifications a person must have in order to adequately perform the job.

The second part of the application (750 Part B) is a statement of the qualifications of the candidate whom the company has selected for the job. This candidate may be in the United States already (for example, on an H-1B visa), or the candidate may be outside the U.S. The candidate must possess at least the minimum qualifications for the job as set forth in Part A of the application. The statement includes details about the candidate’s educational and work-related background. Copies of the candidate’s educational degrees and transcripts and letters from previous employers verifying the candidate’s experience accompany Part B.

How does the government know whether there are U.S. workers to fill the job?

A test of the labor market must show that there are insufficient U.S. workers available who are interested in and willing to take the job. There are two ways to conduct the test: (1) the employer can conduct its own test by providing evidence of recruitment in the past six months; or (2) the employer can let the government conduct the test through government supervised recruitment. The first way leads to what is known as “reduction in recruitment” (RIR) or “fast-track” processing.

How does RIR or fast-track labor certification application processing work?

RIR labor certification applications are given top priority by DOL and constitute the preferred approach whenever and wherever possible. Fast track depends on an employer’s ongoing pattern of recruiting rather than performance of an individual test of the labor market. In other words, rather than placing individual advertisements for each application, a fast-track application is filed with a documentation package containing evidence of the company’s pattern of recruitment.

What is the advantage of RIR processing?

By far the best reason to take advantage of RIR processing is to cut time out of the process. The success of a fast-track application depends on the company’s recruiting efforts and the extensiveness of these efforts’ documentation. The fast-track approach significantly decreases the processing time from filing to approval and varies from jurisdiction to jurisdiction.

What if the application cannot qualify for RIR processing?

Some applications will not qualify for fast-track processing because 1) there is insufficient recruitment for the position; or 2) the occupation does not have a shortage of U.S. workers. In such a case, the employer must pursue labor certification by conducting recruitment that is supervised by the state agency. These cases are given a lower priority and result in slower processing times. For example, in California, New Jersey, or New York, a non-RIR case filed this month might take three years or more* to process; in Illinois, it could take slightly less time.

The labor certification application process can take so long, even for fast track. Is there any way around it?

Most employees will need to go through the labor certification application process, but some will not. For example, high-level employees who are transferred to the U.S. from company offices abroad may be eligible to immigrate without first obtaining a labor certification.

Under the multinational manager/executive classification, an employee with a Ph.D. in his or her respective field, as well as publications and other professional distinctions, may be eligible for “outstanding researcher” immigrant classification, for which labor certification is not necessary.

Also, employees who can demonstrate that they rank at or near the very top of their field nationally or internationally may be eligible for “extraordinary ability” classification; labor certification would not be necessary for these individuals either. Certain jobs and projects have been found to be especially “in the national interest,” and employees working on such jobs may be able to bypass the labor certification process.

The attorneys at Berry, Appleman & Leiden routinely scrutinize and evaluate all new “green card” cases for eligibility for multinational manager/executive, outstanding researcher, national interest/extraordinary ability, or other classifications that might obviate the need for labor certification. The attorney will notify the employee and the company if such a route might be possible.

STEP 2: The Immigrant Petition (I-140)

What is an immigrant petition?

An employer files an immigrant petition on behalf of an employee when the employer wishes to formally sponsor the employee for U.S. immigration. The petition is a formal offer of “permanent” employment (that is, employment of indefinite duration).

What’s the difference between an immigrant petition and a labor certification application?

A labor certification application is an application to the government (specifically, to DOL) asking for official certification that a job exists that cannot be filled by a U.S. worker. An immigrant petition is a petition to the government (specifically, to INS) asking the government for permission to hire a specific foreign national to “permanently” fill the job. Most immigrant petitions must be based on approved labor certification applications, because for most jobs, the law requires DOL to find that there is a shortage of U.S. workers for the job.

What goes into an immigrant petition?

The application form, Form I-140, provides information about the company (the “petitioner”), the candidate (the “beneficiary”), and the job offered. The employer must also request on the form that the beneficiary be classified according to a specific preference category.

What is a preference category?

Under U.S. laws, there are five preference categories in which an employment-based immigrant is eligible for assignment. Statutory quotas limit the number of people who can immigrate each year depending both on the preference category in which the person is classified, and the person’s country of birth. The vast majority of employment-based immigrants fall into either the second preference (EB2) or the third preference (EB3) category.

What is the difference between EB2 and EB3?

Generally, EB2 classification is for people who will work in jobs that require someone with either an advanced degree (for example, a master’s degree or Ph.D.) or its equivalent (i.e., a bachelor’s degree plus at least five years of “progressive” experience). EB3 is for people whose jobs don’t require such education or expertise. Classification is determined not by what education and experience the person actually has, but by what education and experience is necessary for the person’s job as set forth in the labor certification.

What does it matter whether a person is classified as EB2 or EB3?

Every year, quotas allow only a limited number of people to immigrate to the U.S. The quotas depend both on the preference category and the country of one’s birth. The laws do not allow more than a certain number of EB2 and EB3 individuals to immigrate, and each country is limited to a percentage of the total number of each catetgory.

For people from most countries, it makes no difference whether they are classified as EB2 or EB3, because both of these categories are “current” (meaning there is no waiting to immigrate) for most of the world’s countries. Until recently, persons born in India and the PRC, who fell under certain employment-based categories, normally had to wait for their priority dates to become current before filing for AOS.

If an employee has to wait to immigrate, how is the length of the wait calculated?

The employee must wait until his or her “priority date” is current before he or she will be allowed to begin the third step of the immigration process. The priority date is the date the employee’s labor certification application was originally filed (generally, the date the application was received by the state employment security agency).

Every month, the U.S. Department of State tracks the number of people who immigrate from all countries in each preference category. Based on those numbers, it designates certain priority dates for each category as current, and people holding these or older priority dates are eligible to move to the third step of the immigration process.

If an employee has to wait to immigrate, how long might the wait be?

An example can illustrate how the waiting process works. Suppose that a company filed a labor certification application on behalf of a Chinese national in a job requiring a master’s degree on May 1, 1997 (the priority date). The labor certification was approved by DOL on April 1, 1998. The employer then filed an immigrant petition with INS based on the approved labor certification on April 15, 1998, which was approved on August 15, 1998. Because the job the employee holds requires a master’s degree, the employee qualifies for and was given EB2 classification.

When would this employee be eligible to immigrate? In November 1998, the State Department indicated that current priority date for Chinese-born EB2 immigrants was May 22, 1996. This meant that those immigrants whose labor certification applications were filed on or before May 22, 1996 were eligible to immigrate. The employee described above, therefore, would have to wait.

If the difference between the current date and an employee’s priority date is one year, does this mean that the employee’s wait will be one year?

Not necessarily. Priority dates do not advance at the same rate as the calendar. In some months, the date may not move at all; in others, the date might move forward by weeks or even months at a time. Priority dates may even retrogress.

* All processing times indicated are rough estimates based on current experience. Individual cases can and do vary in processing times, and the general periods vary from time to time.

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Professional Workers (EB3 Visa)